AUGUST 1990 

COMMISSION DECISIONS 

98-01-90 

08-01-90 

08-13-90 

08-20-90 

08-22-90 

08-23-90 

08-28-90 

08-29-90 

Big Horn Calcium Company 

Southern Ohio Coal Company 

Paula Price v. Monterey Coal Company 

Sec. Labor for Michael Price & Joe John 

Vacha v. Jim Walter Resources 

Western Fuels-Utah, Inc. 

UMWA, Local 1769 v~ Utah Power & Light Co. 

..Pennsylvania Electric Company 

Harry Ramsey v. Industrial Constructors Corp. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

08-02-90 

08-03-90 

08-03-90 

08-06-90 

08-08-90 

08-08-90 

08-09-90 

08-10-90 

08-16-90 

08-21-90 

08-22-90 

08-22-90 

08-24-90 

08-27-90 

08-28-90 

08-28-90 

08-28-90 

Southern Ohio Coal Company 

Westwood Energy Properties 

Southern Ohio Coal Company 

Wyoming Fuel Company 

Crossgates Mining Company, Inc. 

Inferno Coals Incorporated 

John Erazmus Jr. v. Consolidation Coal Co. 

Dravo Basic Materials Co., Inc. 

Lang Brothers, Inc. 

Sec. Labor for Haryy W. Mullen v. Ernst 

Materials Service 

UMWA~ Local 2176 v. Emery Mining Corporation 

UMWA, Local 1769.v. Emery Mining Corporation 

Sec. Labor for Willard Gennoy v. Consolidation 

Coal Company 

Utah Power & Light Company 

Bellaire Corporation 

Energy Fuels Coal, Inc. 

C. W. Mining Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

08-14-90 

08-20-90 

Beth Energy Mines, Inc. 

Odell Maggard v. Chaney Creek Coal Corp. 

WEST 89-377-RM 

WEVA 89-124-R 

LAKE 86-45-D 

SE 87-128-D 

WEST 86-113-R 

WEST 87-86-C 

PENN 88-227 

WEST 88-246-DM 

WEVA 90-12 

PENN 88-42-R 

WEVA 89-278 

WEST 9'0-238-R 

KENT 89-209 

KENT 90-6 

WEVA 90-108-D 

SE 90-86-DM 

WEVA 90-48 

LAKE 90-57-DM 

WEST 85-72-C 

WEST 85-74-C 

WEST 90-77-D 

WEST 90-285-R 

CENT 89-47 

WEST 89-296-R 

WEST 90-79 

PENN 90-208-R 

KENT 86-1-D 

Pg. 1493 

Pg. 1498 

Pg. 1505 

Pg. 1521 

Pg. 1545 

Pg. 1548 

Pg. 1562 

Pg. 1587 

Pg. 1597 

Pg. 1625 

Pg. 1627 

Pg. 1604 

Pg. 1673 

Pg. 1675 

Pg. 1679 

Pg. 1680 

Pg. 1690 

Pg. 1697 

Pg. 1699 

Pg. 1700 

Pg. 1701 

Pg. 1706 

Pg. 1726 

Pg. 1736 

Pg. 1738 

Pg. 1747 

Pg. 1749 
AUGUST 1990 

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

Big Horn Calcium Company v. Secretary of Labor, MSHA, Docket No. WEST 89-377-R...~ 

and WEST 90-80-M. (Interlocutory Review of several orders, Judge Broderick) 

Golden Oak Mining Company v. Secretary of Labor, MSHA, Docket No. KENT 90-185-R. 

(Judge Broderick, June 29, 1990) 

Secretary of Labor, MSHA v. Bob Sherman employed by Blackhawk, Docket No. 

WEST 90-110-M. (Chief Judge Merlin, Default Decision of July 18, 1990) 

Review was denied in the following case during the month of August: 

Joe Weitholter v. Quality Ready Mix, Inc., Docket No. LAKE 90-17-DM. (Judge 

Melick, July 24, 1990) 
COMMISSION DECISIONS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

BIG HORN CALCIUM COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

~ 730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 1, 1990 

Docket Nos. WEST 89-377-RM 

WEST 90-80-M 

BEFORE: Ford, Chairman; Hackley, Doyle, Lastowka and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

This consolidated contest and civil penalty proceeding arises under the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq. (1988) 

("Mine Act"). Big Horn Calcium Company ("Big Horn") petitioned for interlocutory review of orders of the administrative law judges assigned to this 

case. For the reasons set forth below, the petition for interlocutory review, 

as amended, is granted and this proceeding is remanded for further proceedings 

consistent with this order. 

On review Big Horn asserts that Administrative Law Judge Michael A. Lasher 

abused his discretion by terminating the evidentiary hearing that was in progress and withdrawing from the case before Big Horn had the opportunity to 

present its evidence. It also contends that Administrative Law Judge James A. 

Broderick, the judge assigned to this matter following Judge Lasher's 

withdrawal, .abused his discretion by ruling that all evidence of record developed during the truncated hearing before Judge Lasher would be disregarded and 

that a de~ hearing would be.held in Denver, Colorado. 

I. 

This proceeding commenced when Big Horn contested citations issued by the 

Secretary of Labor ("Secretary") at the Granite Canyon Quarry in Laramie County, 

Wyoming. The case was assigned to Judge Lasher who, in the notice of hearing, 

directed each party to serve on the other a list of witnesses and exhibits and 

a precise statement of the issues. The parties exchanged witness and exhibit 

1493 
lists and filed brief statements of issues. The Secretary listed Thomas Markve 

and Michael Munoz, inspectors of the Department of Labor's Mine Safety and Health 

Administration ("MSHA"), as her witnesses. Big Horn listed five individuals as 

witnesses. Big Horn served interrogatories on the Secretary, but the Secretary 

did not conduct any discovery. 

The evidentiary hearing commenced at 10:30 a.m. on March 21, 1990. Proceeding first, counsel for the Secretary completed his direct examination of 

Inspector Markve on the first day of the hearing. On the second day of the 

hearing, counsel for Big Horn was cross-examining this witness when Judge 

Lasher terminated the hearing. The judge stated that he would be issuing 

orders to counsel requiring them to further prepare this case for hearing 

through additional discovery. Tr. 264. Judge Lasher also presented on the 

record his personal views on a number of subjects not germane to this 

proceeding. Later in the day on March 22, Judge Lasher issued a written 

order d:Lisqualifying himself from hearing this case. 

The case was reassigned to Judge Broderick. After conferring with the 

parties, Judge Broderick issued a prehearing order setting the case for a 

de novo hearing in Denver, Colorado, and ruling that the transcript from the 

previous hearing would not be considered as substantive evidence. (Big Horn 

had requested that the judge consider the transcript from the previous 

hearing as part of the substantive record in this case and that the continued 

hearing be held in Missoula, Montana). The judge also ordered tlie parties to 

file more d~tailed prehearing statements and he allowed additional discovery. 

In its petition for interlocutory review, Big Horn maintains that Judge 

Lasher terminated the hearing in this matter without cause and without allowing 

Big Horn to present its case or cross-examine the Secretary's witnesses. It 

argues that in terminating the hearing Judge Lasher arbitrarily denied three 

out-of-state witnesses, who had appeared in Denver voluntarily at personal 

expense, the right to testify on behalf of Big Horn. It also asserts that 

Judge Lasher materially prejudiced Big Horn when he arbitrarily withdrew from 

the proceeding without issuing a decision on the merits. Further, Big Horn 

maintains that, after the reassignment to him, Judge Broderick abused his discretion and prejudiced Big Horn by granting the Secretary's request that all 

evidence presented at the previous hearing be disregarded and a de novo hearing be held. Big Horn asserts that it has no funds with which t~subpoena and 

pay the travel expenses of its witnesses, to appear and defend itself in deposition or at a de novo hearing in Denver, or to pay any penalties assessed by the 

Secretary. Finally, it states that its witnesses are not available to again 

return voluntarily to Denver from Montana at personal expense. 

Big Horn requests that the Commission issue an order vacating Judge 

Broderick's orders and staying any further hearing pending review of this 

matter, awarding attorney's fees to Big Horn pursuant to the Equal Access to 

Justice Act (EAJA), 5 U.S.C. § 504, and vacating the citations that are the 

subject of this proceeding. In response, the Secretary requests that the 

petition be denied or, in the alternative, that the Secretary be allowed to 

conduct discovery into the issue of Big Horn's present operational and 

financial status. Big Horn filed a response opposing further discovery 

in this_case and supplemented its petition with numerous attachments in 

an attempt to prove its insolvency. In response, the Secretary repeated 

her request for discovery into Big Horn's insolvency claims based, in 

part, on the documents submitted by Big Horn. 

1494 
II. 

The pleadings filed before the Com.mission on review make clear that a 

factual dispute exists concerning Big Horn's ability to participate 

effectively in any further hearing before the administrative law judge. 

The Secretary requests further discovery so that she can fully and 

properly respond to Big Horn's claim of insolvency. She maintains that 

this claim of insolvency and the effect, if any, of such claim on this case 

should be addressed by the administrative law judge in the first instance. 

As stated above, Big Horn opposes further discovery but submitted documents 

not previously entered into the record in support of its claim of insolvency. 

The issue of Big Horn's financial status was only sketchily developed 

before the judge. The resolution of this issue could have a major effect on 

the need for a hearing and the location of the hearing site. We agree with 

the Secretary that the administrative law judge is the appropriate adjudicator 

to resolve this factual dispute. Therefore, pursuant to section 113(d)(2)(C) 

of the Mine Act, 30 U.S.C. § 823(d)(2)(C), we remand this proceeding to Administrative Law Judge Broderick for further proceedings consistent with this order. 

Big Horn should be given the opportunity to fully develop in the record its 

proffer regarding its financial viability. The Secretary should be given the 

opportunity to respond and, if appropriate, to conduct reasonable discovery 

on the insolvency issue. Based on the record developed, the parties can then 

reconsider how they wish to proceed in this case and, if a hearing is necessary, 

the judge can reconsider the location of the hearing site. The order setting 

the hearing in Denver, Colorado, is vacated. 

The Commission's procedural rule at 29 C.F.R. § 2700.51 provides that the 

judge "shall give due regard to the convenience and necessity of the parties" 

in setting a hearing site. We have previously held that an administrative law 

judge abused his discretion in holding a prehearing conference 900 miles from 

the office of a small quarry operator. Cut Slate, Inc., 1 FMSHRC 796 (July 

1979). The Commission's procedural rule is derived from section S(b) of the 

Administrative Procedure Act, 5 U.S.C. § 554(b). The legislative history of 

this section provides that "the agency's convenience is not to outweigh that 

of the private parties." Sen. Doc. No. 248, 79th Cong., 2d Sess., 203 (1946). 

Thus, a careful balancing of interests is required in setting a hearing site 

and on remand the judge should consider the financial health of Big Horn, the 

• location of its witnesses and the ability to secure their attendance when making 

this determination. 

III. 

We agree with Big Horn that Judge Lasher erred in terminating the hearing 

on March 22 prior to Big Horn's cross-examination of the Secretary's witnesses 

and prior to the testimony of its own witnesses, including witnesses that it 

maintains traveled to Denver at their own expense. Nothing in the record 

suggests reasonable grounds for the judge to have terminated the hearing 

during Big Horn's cross-examination of Inspector Markve. The stated reason 

given by the judge was to allow the parties to conduct additional discovery. 

At the time he terminated the hearing, however, neither party had requested a 

continuance and an ample opportunity for discovery had been previously provided. 

Although an administrative law judge is granted broad authority in the conduct 

1495 
of a hearing, we hold that Judge Lasher abused this authority in abruptl_ 

terminating the hearing without good cause. 

We disagree, however, with Big Horn's assertion that, following the inappropriate termination of the hearing, Judge Lasher's recusal and the substitution of Judge Broderick was an abuse of discretion that materially 

prejudiced Big Horn. Section 113(d)(l) of the Mine Act, 30 U.S.C. § 823(d), 

gives an operator the right to a hearing before an administrative law judge 

but it does not confer the right to a hearing before a particular judge. See 

also 29 C.F.R. § 2700.50. An administrative law judge is permitted to 

withdraw from a case whenever he deems himself disqualified. 30 C.F.R. 

§ 2700.81; 5 U.S.C. § 556(d). If the judge who is to decide the case is not 

the same judge who conducted the hearing and the proceeding is one in which 

"the resolution of material conflicting testimony requires a determination of 

the credibility of witnesses," a party may request a de nova hearing before the 

substitute judge. United States Steel Corp., 6 FMSHR°'C"""l423, 1429 (June 1984). 

In this case, however, Big Horn is asking that the proceeding not be heard 

de nova. Big Horn has set forth no other substantive reason why this case 

~nnot proceed before Judge Broderick. 

Judge Broderick ordered a de nova hearing at the request of the Secretary. 

As discussed above, a de nova hearing may be procedurally necessary in some 

instances. In this case, however, the Secretary's first witness has not completed his testimony and there has been no showing that resolution of material 

conflicting testimony will be necessary. Given the posture of this case, we 

conclude that the judge erred in ordering a de nova hearing. Since Inspector 

Markve will be returning to testify, the Judge will be able to fully e'!aluate 

his credibility. Thus, if the hearing on the merits is resumed in this case, 

it should commence with the cross-examination of Inspector Markve and the record 

of the hearing held on March 21 & 22, 1990, should be considered by the judge 

in reaching his decision on the merits. 

Certain portions of the transcript of the March 21-22 hearing contain 

comments of Judge Lasher that are not germane to this proceeding. As a consequence, those portions of the hearing transcript are to be disregarded. 

Belcher Mine, Inc., 7 FMSHRC 1019, 1030 (July 1985). 

VI. 

Big Horn also requests attorney's fees, costs and expenses, pursuant to 

the EAJA, incurred by Big Horn during the March 21-22 hearing. The Commission 

has promulgated procedures that describe who is eligible for an award of 

attorney's fees and costs pursuant to the EAJA, and explain how to apply for 

such awards. 29 CFR Part 2704. Big Horn's request for an award has not been 

filed in accordance with these requirements. Consequently, its request is 

denied. 

1496 
Finally, Big Horn's request that the subject citations be vacated and 

the associated_ civil penalties ~~ dismissed is denied. Big Horn is entitled 

to a fair hearing as set forth in the Mine Act, but it is not entitled to a 

dismissal of the Secretary's case. 

v. 

For tfle foregoing reasons, the order of Judge Broderick setting this 

proceeding for a de novo hearing in Denver, Colorado, is vacated and this case 

i& remanded to the--judge for further 

~ 

proceedings consistent with this order. 

Distribution 

James J. Gonzales, Esq. 

Douglas J. Arnot, Esq. 

Holland & Hart 

555 Seventeenth St., Suite 2900 

P.O. Box 8749 

Denver, Colorado 80201 

Dennis D. Clark, Esq. 

Robert A. Cohen, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

0 /( r/:v1- · i_,./VL 1 .. d.--.t/I {ft,-t--/1-.{__.-

·Richard V. Backley, Commissio r 

/ 

/l.. 

·Joyce A'. Doyle, Commissioner 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1497 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SOUTHERN OHIO COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 1, 1990 

Docket Nos. WEVA 89-124-R 

WEVA 89-204 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

The issue in this consolidated contest and civil penalty 

proceeding arising under ~he Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (1988) ("Mine Act"), is whether Southern Ohio 

Coal Company ("SOCCO") violated 30 C.F.R. § 75.400, the mandatory safety 

standard prohibiting accumulations of coal dust, loose coal and other 

combustible materials i~ active workings and, if so, whether it 

unwarrantably failed to comply with the standard. l/ For the following 

reasons, we affirm Commission Administrative Law Judge James A. 

Broderick's finding of an unwarrantable violation. 11 FMSHRC 2018 

(October 1989)(ALJ). 

ll 30 C.F.R. § 75.400, which restates section 304(a) of the Mine Act, 

30 U.S.C. § 864(a), provides: 

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) defines uactive workings" as: 

[A]ny place in a coal mine where miners are 

normally required to work or travel. 

1498 
On January 30, 1989, Bretzel Allen, an inspector of the Department 

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

E-3 longwall section of SOCCO's Martinka No. 1 Mine, an underground coal 

mine located in Marion County, West Virginia. fl Allen was accompanied 

by MSHA supervisory inspector, Paul Mitchell, and by representatives of 

the miners and mine management. 

After inspecting the longwall face and the longwall shields, 

Inspector Allen turned his attention to the tailgate entry. There, the 

inspector observed. a "windrow" or ridge of loose coal variously 

estimated to measure from 58 to 70 feet long, six to eight feet wide, 

and four feet high. Gov. Exh. 1; Tr. I 24. Approximately 18 feet of 

this windrow was located in the intersection of the longwall face and 

the tailgate entry. The other 40 to 52 feet of the loose coal extended 

up the tailgate entry into the gob area. See Gov. Exh. 7. The 

accumulated coal had been deposited in the tailgate entry by the shearer 

as it reached the end of its cut along the longwall face. 

Later that day, the MSHA inspectors met with company officials and 

discussed SOCCO's longwall cleanup plan. }I SOCCO's cleanup plan 

required that five bags of rock dust be spread in the tailgate entry 

after each cut of the coal by the shearer. Gov. Ex. 4, Item 30. 

Inspector Allen testified: "We ••• discussed how [SOCCO] could reduce 

the amount of coal spillage into the tailgate entry, and we also 

recommended that [SOCCO] blanket dust the coal in the tailgate heading." 

Tr. I 27. 

On the following day the inspector returned to the longwall 

section and observed that a small amount of rock dust had been applied 

to the ridge of coal in the tailgate entry. The inspector took a sample 

of the coal to establish its incombustible •content. (The sample was 

later analyzed at an MSHA laboratory and was found to be 20.8% 

incombustible. Gov. Exh. 3.) Because of the extent of the loose coal 

and its lack of sufficient rock dust, the inspector believed that SOCCO 

had violated 30 C.F.R. § 75.400. He also found that the violation was 

caused by SOCCO's unwarrantable failure to comply with section 75.400 

and significantly and substantially contributed to a hazard. The 

inspector issued to SOCCO a section 104(d)(2) withdrawal order, 

30 U.S.C. § 814(d)(2), which states in part: 

fl The longwall section consisted of headgate and tailgate entries 

and the mining face. The mining face extended between the headgate and 

tailgate entries for approximately 700 feet. Coal was cut from the face 

by the longwall shearer. The roof in the mining face was supported by 

approximately 144 longwall roof support shields. Intake air coursed up 

the headgate entry, crossed the longwall face and returned down the 

tailgate entry. 11 FMSHRC 2019, 2021. 

}I 30 C.F.R. § 75.400-2 requires an operator to maintain "[a] program 

for regular cleanup and removal of accumulations of coal and float coal 

dusts, loose coal, and other combustibles •••• " See Utah Power & Light 

Co., 12 FMSHRC 965 (May ·1990). 

1499 
Loose· coal was accumulated 37 inches dee~ 7 feet 

wide for a distance of 18 feet in the tailgate entry 

of the E-3 longwall section from engineers spad 

station No. 18478 inby and extending an estimated 

distance of 40 feet ..• into the gob area •... 

Gov. Exh. 1. !:!_/ 

SOCCO contested the validity of the withdrawal order and its 

associated special findings. SOCCO also challenged the civil penalty 

proposed by the Secretary for the violation of section 75.400. The 

contest and civil penalty proceedings were consolidated for hearing. 

Before the administrative law judge, SOCCO maintained it had not 

violated section 75.400. SOCCO noted that section 75.400 prohibits the 

accumulation of loose coal in "active workings," and that section 

75.2(g)(4) defines "active workings," as "any place in a coal mine where 

miners are normally required to work or travel." SOCCO argued that 

miners are not normally required to work or travel in the area where the 

alleged.violative accumulation existed. SOCCO also argued that the 

accumulation did not result from an unwarrantable failure to comply with 

section 75.400. SOCCO stressed that due to the longwall mining process 

an accumulation of loose coal in the tailgate entry was inevitable. 

SOCCO also stressed that the instability of the roof in the intersection 

of the tailgate and face entries caused by the natural stresses 

resulting from longwall mining made it extremely dangerous to send 

miners into the unstable area to remove the coal which would, in any 

event, soon become part of the gob. 

Crediting the inspector's testimony concerning the nature of the 

accumulation and the analysis of the inspector's incombustible content 

sample, the judge found that the accumulation consisted largely of 

combustible loose coal. 11 FMSHRC at 2021, 2022. The judge further 

held that the evidence established that the cited 18 feet of the 

accumulation (in the tailgate entry) existed in an area where miners 

were normally required to travel, making the area "active workings." 

Finally, because the accumulation in the tailgate entry had been pointed 

out to SOCCO and was not cleaned up or made inert by January 31, he held 

the violation resulted from SOCC0 1 s unwarrantable failure to comply with 

the standard. 11 FMSHRC at 2022-23. 21 

Although SOCCO argues that the judge erred in holding that the 

accumulation existed in "active workings," we conclude that substantial 

!:!_/ The withdrawal order further alleged that SOCCO violated section 

75.400 by permitting' coal and emulsion oil to accumulate ·on parts of the 

longwall roof support shields. The judge found that the Secretary 

failed to prove this violation. 11 FMSHRC at 2022. The Secretary did 

not seek review of this finding. 

21 The judge's additional conclusion that the Secretary failed to 

prove that the violation was of a significant and substantial nature is 

not at issue on review. 11 FMSHRC at 2022. 

1500 
evidence supports the judge's finding. Three inspectors testified on 

behalf of the Secretary: Allen, Mitchell and Ronald Tulanowski. All 

agreed that the tailgate entry had to be examined regularly. Inspector 

Allen stated that the area in which the subject part of the accumulation 

existed "is required to be maintained open for travel for an escapeway 

off the longwall.face" as part of SOCCO's approved roof control plan, 

and that "[a] fire boss has to travel out into there to make his 

examinations of his working section at different times." Tr. I 37. 

When asked how often such travel was required, he responded, "Once a 

week." Id. Mitchell agreed that the tailgate entry had to be 

maintained and examined. He testified that "if anything were to occur 

on [the] longwall face those people have to have some way out." 

Tr. I 107. He further stated "the entry ••• has to be supported in 

order to make a person safe to travel that area, and it is examined by 

certified people to see that it is maintained." Tr. I 107. Tulanowski 

testified that "Roof control law requires that entry to be open for [an] 

emergency escapeway. It has to be examined weekly." Tr. I 125; see 

also Tr. I 125-126. 

SOCCO acknowledged that fire bosses examine and thus travel the 

tailgate entry on a weekly basis. SOCCO Br. to ALJ 21; PDR 6. SOCCO 

also acknowledged Mitchell's testimony that the section foreman 

regularly examined the area in the tailgate entry adjacent to the last 

shield. (Tr. 119). SOCCO stated "other individuals do check more 

frequently [than weekly] to determine whether the route from the 

longwall face down the tailgate entry is passable." SOCCO Br. to 

ALJ 21. Nevertheless, SOCCO objects that although work or travel 

normally may have been required in various portions of the tailgate 

entry, the Secretary did not prove that work or travel was specifically 

required in the cited portion . 

. We note that Tulanowski, Ernest Weaver, SOCCO's section foreman, 

and Pat Zuchowski, SOCCO's general manager of longwalls, stated that 

miners do not normally work in the area. However, the standard also 

applies where miners are required to travel. Tr. I 132, Tr. I 175, 

Tr. II 14. As the inspectors all testified, the tailgate entry must be 

maintained ~s an escapeway off of the longwall face. Tr. I 37 

Tr. I 107; 30 C.F.R. § 75.215. ~/ Further, as even SOCCO agrees, the 

entry must be examined. To enter the tailgate entry from the longwall 

face, a person must pass through the intersection of the face and the 

tailgate entry, specifically through the area immediately adjacent to 

the outby end of the accumulation. Such normally required travel 

establishes the area as "active workings." 

In addition, Mitchell testified without dispute that a ventilation 

curtain was maintained outby the erid of the accumulation and that as the 

~/ 30 C.F.R. § 75.215 states in part: 

For each longwall mining section, the roof 

co,ntrol plan shall specify the methods that will be 

(a) used to maintain a safe travelway out of the 

section through the tailgate side of the longwall .•.. 

1501 
face advanced the cL.:tain was moved further outby. He stated, "someone 

has to go back there to move that." Tr. I 118. It is not an 

unreasonable inference that miners would therefore normally travel 

through the intersection to reach the curtain. Compare Cyprus Empire 

Corp., 12 FMSHRC 911 (May 1990); See Mid-Continent Resources, Inc., 

6 FMSHRC 1132, 1138 (May 1989). 

Given the unanimous testimony of the inspectors that the tailgate 

entry area had to be maintained and inspected and the testimony of 

Mitchell that the outby check curtain had to be moved, we conclude that 

substantial evidence supports the judge's determination that the area 

was "active workings" within the purview of section 75.2(g)(4) of the 

Act where miners were normally required to travel. We agree with the 

judge that the existence of the accumulation in that area violated 

section 75.400. II 

We turn now to the judge's finding that the violation resulted 

from SOCC0 1 s unwarrantable failure to comply with the standard. In 

Emery Mining Corp., 9 FMSHRC 1997, 2000-04 (December 1987), and 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987), we 

held that "unwarrantable failure means aggravated conduct, constituting 

more than ordinary negligence, by a mine operator in relation t~ a 

violation of the Act. 11 This conclusion was based on the ordinary 

meaning of'the term "unwarrantable failure," the purpose of 

unwarrantable failure sanctions in the Mine Act, the Act's legislative 

history, and judicial precedent. We stated that while negligence is 

conduct that is "inadvertent," "thoughtless," or "inattentive," conduct 

constituting an unwarrantable failure is conduct that is "not 

justifiable" or is "inexcusable". Emery, supra, 9 FMSHRC at 2001. 

The judge found tha~ the accumulation in the tailgate entry was 

brought to SOCCO's attention on January 30, had existed for some time 

prior thereto, and had not been cleaned up or rendered inert by 

January 31. The judge concluded that SOCCO's allowing the accumulation 

II In arguing in support of the judge's conclusion that the area 

constituted "active workings," the Secretary asserts that 30 C.F.R. 

§ 75.222(g)(l)(ii) requires miners to work or travel throughout the 

tailgate entry, including the cited area, to install supplemental roof 

supports. Sec. Br. 8. SOCCO objected to the Secretary's interpretation 

of the regulation and attached to its reply brief photocopied pages from 

a mine engineering textbook. SOCCO requested that we take official 

notice of the materials. SOCCO Reply Br. 8. 

The Secretary has moved to strike all reference to the textbook 

arguing that the material is not a part of the evidentiary record below, 

was not subject to cross-examination or rebuttal by·the Secretary, and 

cannot be presented for the first time on review. Because we have 

concluded that substantial evidence supports the judge's finding that 

SOCCO violated section 75.400 without regard to the Secretary's argument 

with respect to 30 C.F.R. 75.222(g)(l)(ii) and the materials referenced 

by SOCCO in rebuttal of that argument, we need not reach the merits of 

the Secretary's motion to strike._ 

1502 
to continue to exist established its aggravated conduct in connection 

with the violation. 11 FMSHRC at 2023. We agree. 

The presence of the accumulation was brought to SOCCO's attention 

on January 30. Inspector Allen testified that he was accompanied by 

David Stout, SOCC0 1 s safety assistant, on that date and that he 

discussed the accumulation with Stout. Tr. I, 16, 25. Allen, Mitchell 

and Tulanowski also testified that on January 30, in a subsequent 

meeting, Allen and other MSHA officials discussed the accumulation with 

additional management personnel. Tr. I 27, I 103, I 123. Nevertheless, 

the accumulation continued to exist on January 31 and SOCCO had not, by 

complying with the provisions of its cleanup plan, lessened the hazard 

that the accumulation presented. Compare Utah Power & Light Co., Mining 

Division, supra, 12 FMSHRC at 971-72. Allen testified that by January 

31 only a small amount of rock dust had been applied to the 

accumulation, perhaps one bag. Tr. I 30-31. 'He described the 

application as a "very small, minimum amount." Tr. I 30. Safety 

Committeeman Grimes described it as "very light" and "very little." 

Tr. I 86-87. The judge credited Allen's and Grimes' testimony. 

11 FMSHRC at 2021. A judge's credibility findings and resolutions of 

disputed testimony should not be overturned lightly, and we find no 

basis for doing so here. See, ~' Secretary on behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC 803, 813 (April 1981). 

Given the continuing existence of the accumulation on January 31 

and the judge's finding regarding SOCCO's noncompliance with its cleanup 

plan, we conclude that substantial evidence supports the judge's finding 

that the violation was the result of an unwarrantable failure to comply 

with the standard. ~/ 

~/ Responding to SOCCO's assertions regarding the technological 

inevitability of the accumulation because of the longwall mining process 

and the hazards of proceeding under unstable roof to remove the 

accumulation, the Secretary argues that application of rock dust in an 

amount sufficient to inert the accumulation andrender it incombustible 

would constitute compliance with the cited standard. Sec. Br. 10 n.10. 

Such an interpretation may be a counterpart to the Secretary's policy oh 

the enforcement of section 75.400 with regard to accumulations of loose 

coal caused by sloughing ribs. In the case of rib sloughage the 

Secretary has stated that, because removal of such coal amplifies the 

hazard of loose ribs, "such loose coal shall not be considered 

accumulations of combustible material if such material is rendered inert 

by heavy applications of rock dust." Department of Labor, Mine Safety 

and Health Administration, Program Policy Manual, Volume V, 52 (1988). 

Because of the judge's finding that the accumulations here were 

not rendered inert, we are not required to rule on the merits of the 

Secretary's interpretation of section 75.400 as expressed in the 

referenced footnote. We do note that tension may exist between the 

interpretation and the standard, which on its face requires that "loose 

coal and other combustible materials shall be cleaned up and not be 

permitted to accumulate." See also Black Diamond Coal Mining Co., 

7 FMSHRC 1117, 1121 (August 1985). The Secretary may wish to consider 

1503 
For the foregoing reasons, we aff~ ·m the judge 1 s decision. 

~ 

~,{---'(_/( ,,{,[,(__//{1LJ-l..-t. . Richard V. Backley, Commissioner 1...--· 

/: 

,· J '~.-L:_,. __ /·=-(-

/ ; / j 

.J - . 

Joyce A. Doyle, Commissionei:/ 

James A. Lastowka, Commissioner 

d:l1~ "ltp_j__~) L. Clair Nelson, Commissioner 

whether the standard comfortably accommodates the longwall mining 

technology herein at issue. 

Distribution 

David M. Cohen, Esq. 

Southern Ohio Coal Company 

American Electric Power Service Corp. 

P.O. Box 700 

Lancaster, Ohio 43130 

Eva L. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge James A. Broderick 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1504 

/ 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSlf"N 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 13, 1990 

PAULA PRICE 

v. Docket No. LAKE 86-45-D 

MONTEREY COAL COMPANY 

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

DECISION 

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

This discrimination complaint is before the Commission by way of 

cross-petitions for review of Administrative Law Judge Gary Melick's 

decision on the merits issued April 12, 1989, 11 FMSHRC 614, and his 

final disposition on costs and attorney fees issued June 19, 1989, 

11 FMSHRC 1099. Monterey Caal Company seeks review of Judge Melick's 

holding that it violated section 105(c) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 815(c)(the Mine Act), by suspending 

Paula Price for four days in retaliation for a statutorily protected 

work refusal. Price seeks review of the judge's significant reduction 

in her claimed costs and attorney fees. For the reasons that follow, 

we reverse the judge's holding that Monterey discriminated against Price 

in violation of the Mine Act, we dismiss the complaint and we vacate 

the award of costs and fees. 

Paula Price first filed her discrimination complaint with the Secretary of Lahor on July 28, 1985 pursuant to section 105(c)(2) of the 

Mine Act 1J alleging that Monterey's newly imposed requirement that all 

];_/ Section 105(c)(2), 30 U.S.C. § 815(c)(2), provides as follows: 

Any miner or applicant for employment or representative of miners who believes that he has been discharged, 

interfered with, or otherwise discriminated against 

by any person in violation of this subsection may, 

within 60 days after such violation occurs, file a 

complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the 

(Footnote continued) 

1505 
miners wear integrated metatarsal work boots had been discriminatorily 

applied to her and others who could not obtain properly fitting 

footwear. 2/ On August 26, 1985, Price supplemented her complaint by 

charging that she had not been allowed to· work for two days and was 

thereafter suspended for three days because she "did not have proper 

boots to wear." 11 FMSHRC 619. By letter of January 7, 1986, MSHA 

Fn. 1/ continued 

Secretary shall forward a copy of the complaint 

to the respondent and shall cause such investigation to be made as he deems appropriate. Such 

investigation shall commence within 15 days of 

the Secretary's receipt of the complaint, and 

if the Secretary finds that such complaint was 

not frivolously brought, the Commission, on an 

expedited basis upon application of the Secretary, shall order the immediate reinstatement of 

the miner pending final order on the complaint. 

If upon such investigation, the Secretary determines that the provisions of this subsection have 

been violated, he shall immediately file a complaint 

:i:,.rith the Commission, wi.th service upon the alleged 

violator and the miner, applicant for employment, 

or representative of miners alleging such dis.crimination or interference and propose an order granting 

appropriate relief. The Commission shall afford an 

opportunity for a hearing (in accordance with section 

554 of title 5, United States Code, but without regard 

to subsection (a)(3) of such section) and thereafter 

shall issue an order, based upon findings of fact, 

affirming, modifying, or vacating the Secretary's 

proposed order, or directing other appropriate relief. 

Such order shall become final 30 days after its 

issuance. The Commission shall have authority in 

such proceedings to require a person committing 

a violation of this subsection to take such affirmative action to abate the violation as the Commission 

deems appropriate, including, but not limited to, 

the rehiring or reinstatement of the miner to his 

former position with back pay and interest. The 

complaining miner, applicant, or representative of 

miners may present additional evidence on his own 

behalf during any hearing held pursuant to this 

paragraph. 

30 U.S.C. § 815(c). 

2/ Integrated metatarsal work boots are boots equipped with a permanent 

protective shield incorporated into the boot which protects the top of 

the foot between the ankle and the toe~. 

1506 
informed Price that after its investigation of the matter it had concluded 

that her complaint of discrimination "ha[d] been satisfied P:d that no 

further pursuit of the complaint [was] required." 11 FMSHRC 620. MSHA 

also informed Price of her right to file a complaint with the Commission 

on her own behalf pursuant to section 105(c)(3) of the Mine Act, 3/ which 

she did on January 24, 1986. Id. -

Twelve days of hearings on the merits ensued during late 1986 and 

early 1987. As post-hearing briefing was concluding, the Commission 

issued its decision in Gilbert v. Sandy Fork Mining Co., 9 FMSHRC 

1327 (August 1987), wherein the Commission invalidated Commission 

1/ Section 105(c)(3), 30 U.S.C. § 815(c) provides as follows: 

Within 90 days of the receipt of a complaint filed 

under paragraph (2), the Secretary shall notify, in 

writing, the miner, applicant for employment, or representative of miners of his determination whether a 

violation has occurred. If the Secretary, upon 

investigation, determines that the provisions of this 

subsection have not been violated, the complainant shall 

have the right, within 30 days of notice of the Secretary's determination, to file an action in his own behalf 

before the Commission, charging discrimination or interference in violation of paragraph (1). The Commission 

shall afford an opportunity for a hearing (in accordance 

with section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such section), and 

thereafter shall issue an order, based upon findings of 

fact, dismissing or sustaining the complinant's charges 

and, if the charges are sustained, granting such relief 

as it deems appropriate, including, but not limited to, 

an order requiring the rehiring or reinstatement of the 

miner to his former position with back pay and interest 

or such remedy as may be appropriate. Such order shall 

become final 30 days after its issuance. Whenever an 

order is issued sustaining the complainant's charges 

under this subsection, a sum equal to the aggregate 

amount of all costs and expenses (including attorney's 

fees) an determined by the Commission to have been 

reasonably incurred by the miner, applicant for employment or representative of miners for, or in connection 

with, the institution and prosecution of such proceedings 

shall be assessed against the person committing such 

violation. Proceedings under this section shall be 

expedited by the Secretary and the Commission. Any order 

issued by the Commission under this paragraph shall be 

subject to judicial review in accordance with section 106. 

Violations by any person of paragraph (1) shall be subject 

to the provisions of sections 108 an llO(a). 

30 u.s.c. § 815(c)(3). 

1507 
Procedural Rule 40(b), 29 C.F.R. 2700.40(b), by holding that a section 

105(c)(3) complaint could not be filed in the absence of a Secretarial 

determination that no violation of section 105(c) had occurred. Finding 

that the Secretary's January 7, 1986, letter to Price was not a determination that no violation had occurred, the judge held that he lacked 

jurisdiction to continue the proceeding and dismissed the case. 9 FMSHRC 

1662 (September 1987). 

Price's petition for review of the judge's dismissal order was granted 

by the Commission on October 13, 1987. Meanwhile, the U.S. Court of Appeals 

for the District of Columbia Circuit reversed the Commission's retroactive 

application of its revocation of Rule 40(b) in Gilbert, supra. Gilbert v. 

FMSHRC, 866 F.2d 1433 (D.C. Cir. 1989). Accordingly, the Commission on 

February 28, 1989, vacated its direction for review and remanded the case 

to the judge to complete the record and enter a decision. 11 FMSHRC 183 

(February 1989). On remand the judge issued his April 12, 1989, decision 

on the merits, 11 FMSHRC 614; and his June 19, 1989, disposition of costs 

and fees, 11 FMSHRC 1099, both presently on review. 

Monterey Coal Company operates a large underground coal mine, the 

Monterey No. 2, in Albers, Illinois at which Paula Price is employed. 

Sometime prior to early 1985, Monterey conducted studies of foot injuries 

at its various operations and determined that those injuries could be 

significantly reduced if miners wore metatarsal protective work boots. 

Tiie company also determined that greater protection would be provided if 

the metatarsal shields were integrated into the miners' boots rather than 

by means of temporary clip-on metatarsal guards which had not passed 

American National Standards Institute (ANSI) standards for foot protection. 

11 FMSHRC 622-23. Monterey began discussing its integrated metatarsal boot 

policy with the United Mine Workers of America (UMWA) safety and communications committees in February of 1985, and by a series of announcements in 

April and May of 1985, declared that all miners would be required to report 

to work with integrated metatarsal boots beginning July 15, 1985. R. Ex. 1. 

In response to a suggestion by the UMWA, Monterey agreed to pay for the 

first pair of boots so long as they were provided by one of two selected 

vendors (Hy-Test and Iron Age) who provided "shoemobile" services to the 

mine where boots could be fitted and selected. Miners were pern;iitted to 

secure conforming boots from any source but would only be eligible for 

free boots ordered from the two selected vendors. 11 FMSHRC 623; Tr. 883, 

1065-1070. Miners were informed that both vendors could make any size as 

a special order, 11 FMSHRC 623, but that such orders should be placed as 

soon as possible. Resp. Ex. 1. Tiie vendors were scheduled to visit the 

mine three times each during the latter half of June. Id. 

Anticipating that some miners might have difficulty securing the 

required shoes by the July 15, 1985, deadline, Monterey advised any such 

miners to so inform the safety department. A list of those miners was 

drawn up and provision was made for them to wear temporary clip-on 

metatarsal guards until the boots on order arrived; the general policy, 

however, was that miners who reported for work after the deadline without 

1508 
intagrated metatarsal boots would not be allowed to work. 11 FMSHRC 623. 

Price was unable to secure from the shoe·obile a pair of Hy-Test boots 

she had selected, so an order was placed and her name was added to the 

list of miners awaiting boot.s. Her pair apparently arrived on time, 

however, and she reported for work in them on July 16, 1985. Id. 

Price experienced discomfort with the new boots and complained~o her 

foreman, Don Overturf, and to an unidentified clerk in the safety 

department. She asked that she be allowed to alternate wearing her new 

(Hy-Test) boots and her old (Red Wing) boots equipped with temporary 

clip-on guards until the new pair was broken in. The safety clerk told 

Price he had no authority to grant such an exemption. From July 16 to 

July 19, 1985, Price described her discomfort as increasing from redness 

to chafing, to raised and loosened skin across the top of her arch and 

toes, to blistering. She also complained that the boots caused pains 

in her heels at work and "charley horses" in her legs when she tried 

to sleep at home. 

On July 19, Price showed her feet to foreman Overturf who reported 

observing redness but no blisters. In any event, Price left the mine 

during the shift on July 19 and reported to the nurse's station. 

11 FMSHRC 6Z4-626. The nurse's report also showed redness but no blisters. 

R. Ex. 5, Attach. 2. The following day Price visited a doctor who prepared 

a note indicating that she had vesicles (small blisters) on her feet and 

that she should not wear the new boots. 11 FMSHRC 626. Upon returning 

to work on her next scheduled shift of July 22, 1985, Price presented the 

note to Ben Chauvin, the mine shift manager, and filed a safety grievance 

regarding the boot policy. She was given a one-week exemption from the 

new boot policy and was permitted in the interim to wear her old boots 

with temporary clip-on guards. 11 FMSHRC 627. 

On July 24, 1985, Price filed a second grievance regarding the 

company's refusal to excuse her absence for part of her July 19, 1985, 

shift and for re~using to treat her foot problem as a work-related 

injury. The grievance was settled on July 26, 1985, by the following 

agreed-upon terms: 

The appropriate manufacturing representative shall 

be contacted regarding this employee's shoes. After 

such contact is made and a determination given by 

the manufacturer, the employee shall make arrangement for providing footwear that meets management 

standards for metatarsal shoes. 

It was agreed that Price's boots would be returned to Hy-Test to determine whether they were defective. Id. (Price contended that the boots 

had "stretched-out." Tr. 657). Price's exemption from the boot policy 

was extended until such time as the boots were returned or new boots 

were provided. Hy-Test responded that the boots were not defective but 

were too big, and sent a replacement pair of a narrower width with the 

proviso that Price should be sure the new ones fit before she wore them 

underground. 11 FMSHRC 627. 

1509 
Price received the replacement pair on August 12, 1985 and wore them 

at home in an attempt to break them in, but found that she could not 

"keep them on [her] feet for more than an hour." 11 FMSHRC 617. Shift 

manager Chauvin became aware on August 15, 1985 that Price had received 

the replacement pair, and at that point he informed Price that she would 

no longer be exempt from the policy and that she would have to report to 

work on August 19, 1985, her next working day, with integrated metatarsal 

boots. 11 FMSHRC 627. 4/ Price thereupon visited a bootery in an attempt 

to have the temporary clip-on guards attached permanently to her old Red 

Wing boots but, according to Price, she was told it could not be done for 

"liability reasons." On August 19, 1985, Price reported for work wearing 

her old boots and her own set of temporary clip-on guards. She was 

refused access to the mine and marked AWOL for the day. 11 FMSHRC 628. 

Price then secured another doctor's note stating that she required properly fitting boots. She also called Hy-Test to complain that the 

second pair of boots did not fit and was advised to return them to 

Monterey's mine warehouse so that a third pair could be provided. On 

August 20, 1985, after returning the second pair of boots to the 

warehouse, Price once again reported for work wearing her old boots and 

temporary clip-ons. Chauvin again denied her access to the mine and 

marked her AWOL. He also told her that if she failed to appear the 

following day with integrated metatarsal boots she would be suspended 

and perhaps discharged. 11 FMSHRC 628-29. 

Price'made attempts to secure proper boots that day but was told 

they would have to be specially ordered which would take two weeks. The 

scenario was repeated at the beginning of the August 21, 1985 shift and 

when Price and UMWA safety committeeman Burkholder complained to mine 

superintendent David Lange, he informed her that she was suspended until 

August 26, 1985, at which time she would have to report to work in boots 

with integrated metatarsals or risk being discharged. On August 22, 

1985, Price met with safety superintendent Gordon Roberts and asked 

whether she could comply with the boot policy by having temporary clipon guards attached permanently to her old boots by a cobbler. After 

conferring with other Monterey officials, Roberts approved this means of 

compliance and a notice to that effect was posted at the mine. Id. 

Thereafter Price reported for work on August 26, 1985 in her old--'hoots 

with the clip-ons permanently attached and was allowed back into the mine. 

11 FMSHRC 618, 629. 

On August 28, 1985, the UMWA on Price's behalf filed a grievance 

seeking pay for the four days she was marked AWOL or suspended (August 

19, 20, 21 and 22) as well as pay for an "idle day" Price claimed she 

was entitled to work (August 23) and out-of-pocket expenses connected 

4/ The ALJ's decision indicates that Chauvin apparently learned of 

Price's receipt of the second pair of boots and issued his ultimatum 

on August 18, 1985. This must be error. August 18, 1985, was a Sunday, 

a non-working day at the mine. Furthermore, both Price (post-hearing 

brief at p. 16) and Monterey (brief on review at p. 8, fn -11) agree that 

the correct date was August 15, 1985. 

1510 
with the grievance. The grievance was settled by the union for four 

days' pay tn return for the withdrawal of Price's other grievance demands 

but Price was not present at the time the settlement was entered into. Id. 

Unsatisfied with the terms of the settlement, Price informed MSHA on 

December 16, 1985 that while she had been reimbursed four days' pay, she 

felt she was still entitled to the "idle day" pay and to have all references 

to the dispute removed from her file. 11 FMSHRC 619. 

As described above, the Secretary responded that her complaint "ha[d] 

been satisfied" and that further pursuit of the complaint was not required. 

In her subsequent section 105(c)(3) filing with the Commission, Price again 

requested the "idle day" pay and removal of all references to the dispute 

from her file. 11 FMSHRC 621. After a preliminary hearing before the ALJ, 

held July 9, 1986, Price added claims for her "expenses related to the 

litigation of her complaint" and "a pair of boots that fit." Id. 

In his decision on the merits, the judge reduced what he described 

as Price's "somewhat rambling and ambiguous complaints" to the following 

basic complaint: that Price "was suspended from work by Monterey because 

she in essence refused to perform work under a work rule that was un~ 

healthful and unsafe as applied to her." 11 FMSHRC 622. 5/ This 

distilled complaint provided what the judge termed a "framework" for 

analyzing the case in terms of work refusal precedents established by 

the Commission. 

Reviewing the evidence the judge determined: that Price's first pair 

of boots was ill-fitting and caused injuries to her feet; that Price was 

unsuccessful in breaking in the second pair of boots; that ill-fitting 

boots would present a hazard of possible infection from abrasions and 

blisters, or could cause a stumbling hazard or interfere with her safe 

evacuation of the mine in an emergency; and that Price had made good 

faith efforts to secure properly fitting boots before and during the 

period of her suspension. On those bases the judge concluded that 

Price's continued refusal to comply with Monterey's work rule requiring 

the wearing of integrated metatarsal boots from August 19 through 

August 22, 1985, constituted a protected work refusal based on a good 

faith reasonable belief that it would have been hazardous to comply with 

the rule. 11 FMSHRC 622, 630. 

The judge also found that Price had sufficiently communicated the 

hazards associated with her wearing ill-fitting metatarsal boots to 

5/ The judge made note of other alleged acts of discrimination in 

Price's post-hearing brief but held they were not properly before him 

since they had not first been presented to the Secretary under section 

105(c)(2). In short, he held that Price had "neither exhausted her 

administrative remedies nor met a statutory condition precedent." 

11 FMSHRC 622, fn. 4. The judge also noted that Price's underlying complaint had not been amended to include the .additional allegations nor 

had Price or her attorney complied with Commission Rule 42(a), 29 C.F.R. 

2700.42(a), dealing with the contents of a discrimination complaint. Id. 

1511 
various Monterey officials, including foreman Overturf and shift manager 

Chauvin. Lastly, the judge concluded that Monterey's refusal to allow 

Price to work from August 19 througr. August 22, 1985, was motivated 

solely by her refusal to wear integrated metatarsal boots. 11 FMSHRC 630. 

Having found protected activity and adverse action motivated solely 

by that activity, the judge sustained Price's complaint with respect to 

the loss of four days' work while she was marked AWOL or on suspension. 6/ 

He also held that Price was entitled to recover her costs associated with 

pressing her complaint in both the proceeding before him and in the 

grievance proceeding. Lastly, the judge directed Monterey to delete from 

its records any references to disciplinary action taken against Price for 

her refusal to wear integrated metatarsal boots. The judge denied, 

however, Price's request for a company-paid pair of integrated metatarsal 

boots since she had waived such an entitlement by requesting to wear her 

old boots with clip-on guards permanently attached. He also denied her 

claim for compensation for the "idle day" of August 23, 1985. The judge 

thereupon directed the parties to submit written statements and responses 

with respect to the costs to be awarded. 

In the supplemental proceeding to determine fees and costs, Price 

submitted the following claims: $187.36 incurred in connection with her 

grievance proceeding: $4,250.98 in costs of prosecuting her section 

105(c)(3) claim; and $24,107.79 in attorney's fees. Monterey opposed 

the award of costs or fees on the grounds that they were not authorized 

under the circumstances of the case and were, in any event, well in 

excess of "any conceivable fee and expense entitlement." 11 FMSHRC 

1099. Monterey argued that Price was foreclosed from recovering costs 

associated with her labor grievance since that had been settled by th~ 

company's payment of the four days' pay in return for the dropping of 

all other claims. Tha judge, however, dismissed the challenge on two 

grounds. First, the costs incurred by Price in processing her grievance 

were directly related to the development of evidence necessary for the 

section 105(c)(3) case and were thus, in terms of 105(c)(3), "in connection with the institution and prosecution" of her discrimination complaint 

before him. Second, Price had not consented to the settl~ment reached 

between Monterey and the UMWA acting on het behalf. 11 FMSHRC 1100. 

The judge did, however, substantially reduce the claimed court costs 

and attorney fees on the ground that section 105(c)(3) limits such awards 

to those costs and expenses "reasonably incurred." Id. To determine the 

reasonableness of Price's costs and fees, the judge relied on Hensley v. 

Eckert, 461 U.S. 424 (1983) and Copeland v. Marshall, 641 F.2d 880 (D.C. 

Cir. 1980). While noting that an appropriate attorney fee may be determined by multiplying the number of hours reasonably expended on the 

litigation by a reasonable hourly rate, the judge indicated that the 

party's partial or limited success may render the product of that 

multiplication excessive. Thus, "the court necessarily has discretion 

in making this equitable judgment." 11 FMSHRC 1101. The judge then 

noted that while Price had alleged 31 protected activities and 14 acts 

6/ As noted above, Price had recovered her pay for the four days' 

work through settlement of her grievance under the labor contract. 

1512 
of discrimination (some of which he called "facially frivolous"), she 

prevailed on only one act of discrimination. 

The judge also considered the quality of Price's representation as 

another factor in determining the appropriate fee. Here, he concluded 

that the inordinate length of trial - 12 days for a case that should 

hav.e taken 2 days "'." was chargeable to Price's counsel. He also noted 

counsel's lack of preparation, focus, and understanding of the law; 

her frequent and extraordinary delays between questions; and her 

repeated failure to promptly appear and be ready for trial as bases 

for significantly.reducing the "lodestar" fee. Taking the above matters 

into consideration, the judge reduced the request for costs and fees 

to $4,800 which added together with the costs claimed for the grievance 

proceeding, resulted in an award of $4,987.36. 

On review, Monterey's first exception to the judge's decision is 

that he erroneously characterized the dispute over the integrated 

metatarsal boot policy as a work refusal case. Monterey argues that 

Price never refused to work; rather, Monterey refused her access to the 

mine from August 19 to August 22, 1985, because she refused to comply 

with a company safety rule, i.e., wearing integrated metatarsal boots on 

the job. Monterey brief pp. 17-18. Viewed from that perspective, the 

company asserts, it does not matter whether Price was unwilling or unable 

to comply with the metatarsal boot policy; a mine operator can establish 

"proactive" company safety rules or requirements and a miner's failure 

to comply, for whatever reason, should not be deemed protected activity 

for purposes of the Act. 

In the alternative Monterey asserts that even if the case involves 

a work refusal, Price's claim should be rejected for two reasons: 

(1) the "hazard" complained of did not justify Price's work refusal, and 

(2) Price lacked a good faith reasonable belief that a hazard existed. 

In that regard Mon~erey first avers that the complained-of hazard was 

personal to Price and was not under Monterey's control. Monterey further 

asserts that work refusal rights are intended to be invoked only in the 

face of a hazard which is "relatively severe and imminent". Monterey 

contends that the hazard faced by Price on August 19, 1985, was 

"discomfort from ill-fitting boots that had not yet been broken in" and 

that the judge~s finding of a hazard with respect to the boots is so 

remote and speculative that it cannot justify a refusal to obey a direct 

work order. Id. p. 27. 

With respect to Price's good faith reasonable belief in the existence 

of a hazard warranting a work refusal, Monterey asserts that Price could 

have taken the necessary steps that ultimately brought her into compliance 

with the work boot policy before the threat of suspension with intent to 

discharge became a reality. In sum, Monterey takes the position that it 

was Price's responsibility to secure a pair of boots that complied with 

the company's integrated metatarsal policy and which fit to her 

satisfaction; that the company made reasonable efforts to accommodate her 

by extending her time to comply; and that its imposition of disciplinary 

measures was justified in order to ensure her compliance. 

1513 
For her part, Price asserts that she· did engage in a protected work 

refusal based upon her good faith, reasonable belief that her replacement 

boots were unsafe or unhealthful to wear on August 19, 20 and 21, 1985. 

Price further argues that once a miner expresses to an operator a good 

faith reasonable fear of a hazard, the operator has a corresponding 

obligation to address the perceived danger or provide another method of 

performing the same work that is safe. Price contends that she continued 

to reasonably respond to the perceived hazard throughout her suspension 

while Monterey refused to offer her a reasonable alternative method of 

performing her job until the work boot dispute could be resolved, i.e., 

an extension of time for Price to comply until she could: secure a third 

pair of boots from Hy-Test, have temporary metatarsal guards permanently 

attached to her old boots, or secure a specially fitted shoe. 

In sum, it is Price's contention that the integrated metatarsal 

boot policy was unhealthful and unsafe as applied to her, since she 

was unable to secure a pair of boots during July and August of 1985 

that would fit her properly and would not cause her discomfort to such 

an extent that she could not work safely. Given that premise, Price 

asserts, it was incumbent upon Monterey either to provide Price with a 

pair of boots that both complied with its policy and did not pose a hazard 

to her or offer Price an alternative, interim means of compliance until 

the larger dispute was resolved. 

The Comm.:l.ssion has long held that a miner seeking to establish a 

prima facie case of discricrination under section 105(c) of the Mine Act 

must prove that he or she engaged in protected activity and that the 

adverse action complained of was motivated in any part by that protected 

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

2786, 2797-2800 (October 1980), rev'd on other grounds sub nom. Consolidation Coal Co., v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on 

behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 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 by the protected activity. Failing that, the operator may 

defend affirmatively against the prima facie case by proving that it 

was also motivated by unprotected activity and would have taken the 

adverse action in any event for the unprotected activity alone. Pasula, 

supra; Robinette, supra, (the so-called Pasula-Robinette test). 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). 

Within this general construct, it is also well-established that in 

certain circumstances a miner's refusal to work constitutes protected 

activity. Pasula, supra, Robinette, supra; Miller v. FMSHRC, 687 F.2d 

1994 (7th Cir. 1982); Simpson v. FMSHRC, 842 F.2d 453 (D.C. Cir. 1988). 

The genesis for the recognition of certain work refusals as protected 

activity is the Senate Report on the 1977 Act, which endorsed a miner's 

right to refuse "to work in conditions which are believed to be unsafe 

or unhealthful." S. Rep. No. 81, 95th Cong., 1st Sess. 35 (1977). In 

order to be protected work refusals must be based upon the miner's "good 

faith, reasonable belief in a hazardous condition." Robinette, 3 FMSHRC 

812; Gilbert v. FMSHRC, supra 866 F.2d at 1439. 

1514 
The Commission has eschewed the setting of a bright line threshold 

of severity in determining ''how severe a hazard must be in order to 

trigger a miner's right to refuse work." Pratt v. River Hurricane Coal 

Co., 5 FMSHRC 1529, 1533 (September 1983). We have instead preferred to 

resolve that issue on a case by case basis. Id., See also, e.g., Pasula, 

supra at 2793 and Robinette, supra at 809 fn.-r1. Mindful that work 

refusals are not explicitly addressed in the Mine Act but are derived 

from its legislative history and our own decisional attempts to implement 

the overall safety and health goals of the Act, we are initially skeptical 

as to whether Congress would have envisioned that discomfort arising from 

a miner's wearing of ill-fitting clothing would constitute a "sufficiently 

serious danger" (Robinette, 3 FMSHRC at 816) to justify a work refusal. 

Mining is not the most comfortable of professions. Many items of basic 

miner's apparel or gear such as clothing, personal protection equipment and 

other safety accessories (e.g., cap lamps and batteries, self-rescuers, hardtoed shoes and hard hats) contribute to the general discomfort of laboring in 

an underground mining environment. It is problematic, however, to compare 

such discomfort, in either type or degree, to the hazards heretofore at 

issue in work refusal cases brought before the Commission. 

With the foregoing as a preface, our analysis of the record in this 

case leads us to conclude first that the judge was correct in treating 

the events of August 19 through August 22, 1985 as a work refusal on 

Price's part. While it is true, as Monterey argues, that Price actually 

presented herself for work on those days, but was refused access to the 

mine for lack of mandated footwear, Price's refusal/failure to comply 

with the company's metatarsal boot policy constitutes a refusal to comply 

with a mandatory work rule. We therefore reject Monterey's assertion 

that the judge erred in treating this matter as a work refusal case and 

analyzing it in those terms. 

We find, however, that the work refusal was not a reasonable one and 

therefore was not protected by section 105(c) of the Mine Act. Consequently, 

Monterey did not violate the Act by denying Price access to the mine and 

suspending her until such time as she came into compliance with the metatarsal 

boot policy. We reach that conclusion on the ground that the "hazard" posed 

to Price by the wearing of metatarsal boots was not sufficient to warrant 

her continued refusal/failure to comply with Monterey's work rule. We 

further find that whatever "hazard" Price subjectively feared with respect 

to wearing metatarsal boots was one within her power to overcome as she 

ultimately did once disciplinary measures were imposed by Monterey. J../ 

7/ While substantial evidence supports the judge's finding that the 

first pair of metatarsal boots did cause Price discomfort and that she 

was unsuccessful in breaking in the second pair, his findings that the 

boots would present a stumbling hazard or impede her safe evacuation of 

the mine in the event of an emergency are highly conjectural and are 

based on Price's own speculative assertions. We therefore reject 

these latter findings as they relate to the work refusal at issue. 

1515 
Part of the difficulty in resolving this case is attributable to the 

complainant's (and t some extent the judge's) tendency to narrow the dispute before us to the two or three days immediately preceeding Monterey's 

denial of access to Price and her ensuing suspension. In fact, however, 

disciplinary measures were not taken until a full four months after the 

metatarsal boot policy was first announced and more than a month after 

the new policy actually took effect. During that period Price's problems 

with compliance were accommodated and extensions of time for her to comply 

were granted in connection with her ongoing grievance concerning the 

policy. While we do not minimize the discomfort owing to ill-fitting 

shoes or boots, we are at a loss to determine what more Monterey could 

have done in these circumstances where the level of comfort associated 

with the wearing of new boots is a particularly subjective and personal 

matter. 

Furthermore, the record clearly indicates that the method by which 

Price ultimately came into compliance with the policy was available to 

her prior to August 19, 1985. Price testified that she was aware that 

another miner experiencing problems with Hy-Test boots, Dorothy Liske, 

had on July 23, 1985 removed the metatarsals from her new boots and had 

them permanently attached to her old boots by a cobbler, apparently 

without incident and with Monterey's knowledge. Tr. 792-794. Price, 

herself, had on August 17, 1985 sought to have the clip-on metatarsals 

permanently attached to her old boots at one bootery but was told it 

could not be done for "liability reasons." 11 FMSHRC 628. Nevertheless, 

she was able to quickly locate another cobbler who would do the work 

several days later as soon as she was placed under the threat of suspension with intent to discharge. 

In addition to retrofitting her old boots to achieve compliance, the 

record indicates that from the outset of the policy Monterey informed the 

miners that those with particular fitting problems could special order 

boots from one of the designated vendors. Yet, for reasons unexplained 

in the record Price had apparently never attempted to place a special 

order with Hy-Test although by the time of the hearings in this case she 

had ordered and sent back five pairs of boots to the vendor. Tr •. 839. 

We note in this regard the grievance settlement entered into between 

Price and Monterey on July 26, 1985 placed the onus of securing footwear 

that met the metatarsal boot policy squarely on Price. 

Lastly, it should be borne in mind that the work rule at issue is 

one specifically designed to enhance Price's safety. We cannot, 

accordingly, conclude that her refusal to comply with a legitimate work 

rule adopted to advance the Mine Act's goal of protecting miner safety 

falls within the realm of conduct intended by Congress to be protected 

by section 105(c). 

1516 
We therefore reverse the judge's finding that Monterey discriminated 

against Price in violation of the Mine Act and dismiss the complaint. In 

view of our disposition on the merits, we also vacate the judge's award of 

costs and attorney fees. §_/ 

8/ Since we are vacating the award of costs and fees, the issue raised 

in Price's petition with respect to the propriety of the judge's substantial reduction of costs and fees is moot. 

1517 
Commissioner Doyle, concurring: 

In its decision, the majority concludes that Monterey did not discriminate 

against Price in violation of the Mine Act. It does so after finding that Price 

was engaged in a work refusal but that the hazard posed was not sufficient to 

warrant her refusal to comply with Monterey's work rule. Slip op. at 11. I 

concur in the conclusion that Monterey did not discriminate against Price but do 

so based on my opinion that Price's conduct was a refusal to comply with a work 

rule, not a refusal to work. 

Monterey Coal Company, after conducting studies of foot injuries at its 

operations, determined that those injuries could be significantly reduced if 

miners were required to wear integrated metatarsal-protective work boots. 

After discussing its plans with the UMWA, Monterey instituted a policy 

requiring all miners to wear such boots and agreed to pay for the first pair 

for each miner, who purchased his boots from one of two particular vendors. 

Price experienced a series of problems with the boots she ordered. As 

indicated in the majority's decision, Monterey attempted for more than a 

month to accommodate Price's problem with her boots. Slip op. at 12. Those 

accommodations did not resolve the problem and Price reported to work on 

August 19 wearing her old boots with temporary clip-on guards. She was 

denied access to the mine on that day and again on August 20 and August 21, 

when she was suspended. 11 FMSHRC 618, 628-29. 

A min~r's refusal to perform work is protected under section 105(c) of 

the Mine Act if it is based on a reasonable, good faith. belief that the work 

involves a hazard. Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2789-2796 

(October 1980), rev'd on other grounds, sub~· Consolidation Coal Co. v. 

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

United Castle Coal Co., 3 FMSHRC 803, 807-12 (April 1981). 11The case law 

addressing work refusals contemplates some form of conduct or communication 

manifesting an actual refusal to work." Perando v. Mettiki Coal Corporation, 

10 FMSHRC 491, 494 (April 1988), quoting Secretary on behalf of Sedgmer v. 

Consolidation Coal Co., 8 FMSHRC 303, 307 (March 1986). 

The judge found that Price's refusal to comply with Monterey's work rule 

requiring integrated metatarsal boots "was a protected work refusal based on 

a good faith, reasonable belief that it would have been hazardous to comply 

with." 11 FMSHRC 630. He also found that she had communicated the hazardous 

nature of wearing ill-fitting integrated metatarsal boots, thus meeting the 

"communication" requirement. 11 FMSHRC 630. 

While the record may support the judge's finding that Price communicate9 

what she saw as the hazardous nature of wearing ill-fitting boots, the record 

does not show, nor did the judge find, that Price at any time communicated a 

refusal to work. And while the majority agrees that Price presented herself 

for work each day but was refused access to the mine, it concludes that Price's 

refusal to comply with a mandatory work rule equates to a refusal to work. Slip 

op. at 11. I disagree. 

In Perando, 10 FMSHRC 491, the claimant, an underground miner, developed 

industrial bronchitis and her physician recommended that she be placed in a 

"position without exposure to coal dust." She agreed to be transfer.t"ed to a 

1518 
laboratory position, but then failed to report to work for a substantial period 

of time. Sub quently, she filed a section 105(c) claim against the operator 

because he did not retain her higher, underground rate of pay. The 

administrative law judge concluded that while Perando had never refused to work 

underground, her "medically substantiated inability to work underground" was 

the "functional equivalent of a work refusal" and that this "refusal" was 

protected activity. 8 FMSHRC 1220, 1222. 

The Commission unanimously reversed the judge, finding no evidence of a 

work refusal, and specifically disagreeing with the judge's determination that, 

while Perando had never refused to work underground in the traditional sense, 

her medical condition was the functional equivalent of a work refusal. 10 FMSHRC 

495. The Commission also found that none of the doctors' reports stated directly 

or indirectly that Perando was refusing to work. Even viewing the doctor's 

reports and Perando's actions together, we found no work refusal. Id. 

I am unable to distinguish the present case· from Perando. Price, like 

Perando, presented a doctor's note, which diagnosed small blisters and 

recommended that she not wear her new boots. In addition, Price presented 

herself for work each day, something more than Perando did. Price's .actions 

alone or taken in conjunction with her doctor's note did not communicate an 

"actual refusal to work" as required by Sedgmer, 8 FMSHRC 303, or Perando. 

Accordingly, I would dismiss her complaint on that basis. 

The Mine Act gives miners and their representatives the right to play a 

major role in enforcement of the Mine Act. In order to encourage the exercise 

of those rights, section 105(c) was enacted in an effort to preclude discrimination motivated by those activities. Also protected is the right to refuse to 

work in unsafe or unhealthful conditions and the right to refuse to comply with 

orders that are violative of the Mine Act. 1/ Congress intended that miners not 

be inhibited in exercising any rights afforded by the Act. 

I see nothing in the legislative history, however, to indicate that Congress 

intended to give miners the right to refuse work on the basis of problems that 

are totally idiosyncratic to the miner and over which the operator has no control. 

While a particular miner may hold a good faith, reasonable belief that it is 

unsafe or unhealthy for him or her to wear shoes that don't f'it or a hard hat 

that provokes a headache, to work underground with industrial bronchitis, to 

lift timbers with a bad back or while pregnant, or to work at all because of 

I/ The Senate Committee stated that section 105(c) "is intended to give 

miners, their representatives, and applicants, the right to refuse to work 

in conditions they believe to be unsafe or unhealthful and to refuse to comply 

if their employers order them to violate a safety and health standard promulgated under the law" (emphasis added). S. Rep. No. 181, 9th Cong., 1st 

Sess. 36 (1977). The Committee cited with approval Phillips v. IBMA, 500 F.2d 

772 and Munsey v. Morton, 507 F.2d 1202. In Phillips the conditions involved 

excessive coal dust and defective electrical wiring, 500 F.2d at 774-775, while 

Munsey involved a roof fall and loose roof. 507 F.2d at 1204-1205. See S. Rep. 

No. 181, 95th Cong., 1st Sess. 36 (1977). 

1519 
lack of sleep, I do not believe that these are rights protected by the Mine Act 

or that Congress intended the oper- :or to be charged with discrimination for 

failing to accommodate them, irrespective of the seriousness of the hazard. 

On this broader basis, I would also dismiss Price's complaint. 

Distribution 

Thomas C. Means, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Michael J. Hoare, Esq. 

134 North Broadway 

St. Louis, Missouri 63102 

e~lea.~ Commissioner 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1520 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMM[SSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 20, 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of MICHAEL L. PRICE 

and JOE JOHN VACHA 

and 

UNITED MINE WORKERS OF AMERICA 

v. 

JIM WALTER RESOURCES, INC. 

Docket No. SE 87-128-D 

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

Commissioners 

DECISION 

BY: Backlej, Doyle and Nelson, Commissioners 

This proceeding, arising under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), 

involves a discrimination complaint brought by the Secretary of Labor 

against Jim Walter Resources, Inc. ( 11 JWR"). The complaint alleges that 

complainants Michael L. Price and Joe John Vacha were discharged in 

violation of section lOS(c) of the Mine Act after they failed to provide 

urine samples required under section !I.E. of JWR's Substance Abuse 

Rehabilitation and Control Program ("Drug Program"). 

Commission Administrative Law Judge James A. Broderick concluded 

that section !I.E. of the Drug Program, which applies to certain 

supervisory and hourly employees, "whose duties, whether by job title or 

by reason of elected office, involve safety, 11 is facially discriminatory 

be.cause the only hourly employees covered are members of the safety 

committees at JWR's mines. 10 FMSHRC 896 (July 1988)(ALJ). The judge 

accordingly determined that the discharges of Price and Vacha pursuant 

to the Drug Program after they failed to provide urine samples were 

illegal under section lOS(c), 30 U.S.C. § 81S(c), and ordered their 

reinstatement. The judge further found, however, that section !I.E. of 

the Drug Program had not been discriminatorily applied to Price and 

1521 
Vacha. The judge issued a sur lemental decision awarding back pay and 

expenses and assessing a civil penalty of $500. 10 FMSHRC 1108 (August 

1988)(ALJ). We granted JWR's petition for discretionary review and 

heard oral argument. For the following reasons, we reverse the judge's 

determination that the Drug Program is facially discriminatory under 

section 105(c) of the Mine Act. We also reverse the judge's conclusion 

that section !I.E. was not discriminatorily applied to Price and Vacha, 

and remand for further findings and analysis as explained below. 

I. 

Factual Background and Procedural History 

JWR operates five underground coal mines, a training facility, and 

a central shop, all located in Alabama, employing over 2,800 employees, 

including 2,200 hourly workers represented by the UMWA. Each JWR mine 

has a local union, all affiliated with District 20 of the UMWA. At all 

times relevant to this proceeding, the UMWA and JWR were signatories to 

a collective bargaining agreement governing labor relations in the JWR 

mines. 

The bargaining agreement establishes a Mine Health and Safety 

Committ~ at each mine composed of miners "who are qualified by mining 

experience and training and selected by the local union." The committee 

is given the right to inspect any portion of a mine and to report any 

dangerous conditions to management. If the committee believes that an 

imminent danger exists and recommends that the mine operator remove all 

employees from the involved area, the operator is required to comply 

with the recommendation. The judge noted: "Under the Act, the safety 

committeemen are considered representatives of the miners. They may 

request MSHA inspections under section 103(g), and normally accompany 

the MSHA inspector during his physical inspections of the mine." 10 

FMSHRC at 902. The safety committeemen are elected by members of the 

UMWA, and committeemen choose their chairmen and select alternate 

committee members. Id. 

At a meeting held in or around April 1986, JWR representatives and 

UMWA officials agreed that a significant problem of substance abuse 

existed among JWR's miners. High discharge, accident and absentee rates 

were attributed, at least in part, to drug abuse. 10 FMSHRC at 898. 

The representatives agreed that the problem should be addressed by a 

joint company-union program. Id. Richard Brooks, JWR's Vice President 

for Industrial Relations, proposed that the program include education, 

drug testing, and rehabilitation. The UMWA believed that development of 

the program should be subject to the collective bargaining process. Id. 

Brooks subsequently prepared a proposed draft program, which was 

submitted to UMWA representatives in July 1986. 'Brooks received no 

response to the draft from the UMWA, and JWR distributed copies of its 

Drug Program to UMWA district and local representatives at a meeting on 

September 24, 1986. In October 1986, JWR advised UMWA representatives 

that the Drug Program would take effect on January 1, 1987. By early 

November 1986, a notice containing a copy of the Drug Program was posted 

at each mine location and each employee received a copy of the program 

1522 
with his or her paycheck. 1/ 

The details of the Drug Program are swmnarized in the judge's 

decision. See 10 FMSHRC at 899. At issue is section !I.E. of the Drug 

Program, dealing with random drug testing, which states: 

Any employee whose duties, whether by job title or 

by reason of elected office, involve safety, shall 

be subject to random testing for substance abuse up 

to four times per calendar year. Physicals for 

hoistmen shall also include testing for substance 

abuse. All provisions of the prog.ram shall apply to 

employees in this category. 

The judge accepted Brooks' testimony that, as used in section 

ILE., the phrase "employee[s] whose duties ••• by job title ... involve 

safety" encompassed safety inspectors, dust and noise control 

supervisors, and section foremen, all salaried positions. 10 FMSHRC at 

899. The only hourly employees covered were union safety commit~eemen, 

who came under the phrase "employee[s] whose duties •.. by reason of 

elected office .•• involve safety." Id. 

At the time the Drug Program was implemented, complainants Michael 

1/ On November 5, 1986, the UMWA filed charges with the National 

Labor Relations Board ("NLRB"), pursuant to the National Labor Relations 

Act, 29 U.S.C. § 151 et seq. (1982)("NLRA"), challenging JWR's 

unilateral implementation of the Drug Program. The NLRB def erred to 

arbitration proceedings, also initiated by the UMWA, premised on the 

parties' collective bargaining agreement. JWR and the UMWA subsequently 

reached a settlement before the arbitrator, the terms of which were set 

out in an Opinion and Award dated January 27, 1987. Under that opinion, 

JWR would implement its Drug Program and the arbitrator would retain 

jurisdiction to resolve any grievances arising under the program. 

After the first grievances were filed and acted on, the UMWA filed 

suit in federal district court to vacate the arbitrator's decision, 

alleging that the union had not agreed to implementation of the Drug 

Program. The district court granted sunnnary judgment in JWR's favor, 

and denied the UMWA's motion for reconsideration. On July 27, 1988, the 

United States Court of Appeals for the Eleventh Circuit summarily 

affirmed the district court. (By order of October 12, 1988, we 

permitted JWR to supplement the record in the present proceeding to 

include therein a copy of the Eleventh Circuit's unpublished order.) 

Meanwhile, the UMWA renewed its unfair labor practice charges 

before the NLRB. In a letter dated August 31, 1988, the NLRB regional 

director declined to institute an unf ~ir labor practice complaint based 

on those charges. (This letter is also included in the supplement to 

the record referred to above.) The Regional Director noted that the 

district court and Eleventh Circuit had rejected the UMWA's claim that 

it had not agreed in settling the arbitration to waive objections to 

implementation of the Drug Program. 

1523 
L. Pr·~e and Joe John Vacha were employed at JWR's No. 4 Mine, an 

underground coal mine located near Tuscaloosa, Alabama. 2/ Price had 

worked for JWR for approximately nine years and had been-a union safety 

committeeman for about eight and one-half years. Vacha had also worked 

for JWR for nine years, and had been a union safety committeeman for 

approximately six years. Price was classified as a longwall helper and 

Vacha as a continuous miner operator although, in recent years, he had 

actually worked on assembling self-contained rescuers. 

Vacha had filed from 75 to 100 safety or health complaints with 

the Secretary under section 103(g)(l) of the Mine Act, 30 U.S.C. 

§ 813(g)(l), and had participated in 50 to 75 safety grievances. Price 

had filed approximately 25 section 103(g)(l) complaints annually and had 

handled approximately 70 safety grievances. Price and Vacha estimated 

that they spent approximately 50% of their working time on safety 

committee duties. Both had been involved in disputes with management 

over safety-related activities and in 1986 Price had been discharged but 

reinstated following arbitration. 

In late February 1987, Brooks decided to begin random testing of 

the safety-related employees in all the JWR Mines under section II.E. of 

the Program. He notified the industrial relations supervisors of this 

decision and directed them to test all employees covered by section 

II.E. on March 2, 1987. The record reflects, however, that, for various 

reasons, the urine samples were obtained from affected employees on 

March 2, 3, 6, and 9, and on April 8, 1987. In the No. 4 Mine, where 

Price and Vacha worked, sampling was delegated by the Industrial 

Relations Supervisor, Rayford Kelly, to Wyatt Andrews, a JWR safety 

inspector, and Bob Hendricks, a JWR associate safety director. (In the 

other mines, the samples were taken under the direct supervision of the 

industrial relations supervisors.) 

Price and Vacha worked on ·the day shift -- 7:00 a.m. to 3:00 p.m. 

At about 8:00 a.m. on March 2, 1987, Price was informed that he would 

have to submit a urine sample. Vacha was similarly notified at about 

11:30 a.m. At the end of their shift, they went to the office of 

Rayford Kelly. Complainants went into a bathroom with Andrews but were 

unable to urinate. Water, coffee and soft drinks were made available, 

but the requested urine samples were not forthcoming. At about 

7:00 p.m. (four hours after completion of their shift), Kelly told Price 

~/ Neither Price nor Vacha tes~if ied at the hearing on the merits in 

this proceeding. The recitation of facts is based on testimony and 

other evidence incorporated by the judge in his decision (10 FMSHRC at 

897) from earlier proceedings concerning their temporary reinstatement. 

On July 7, 1987, upon application by the Secretary, the judge ordered 

that the miners be temporarily reinstated pursuant to section 105(c)(2) 

of the Mine Act, 30 U.S.C. § 815(c)(2), and Commission Procedural Rule 

44, 29 C.F.R. § 2700.44 (1986). We have previously affirmed that order. 

9 FMSHRC 1305 (August 1987). JWR appealed the Commission's temporary 

reinstatement order to the United States Court of Appeals for the 

Eleventh Circuit, where the matter currently is pending (No. 87-7484, 

petition for review filed August 7, 1987). 

1524 
and Vacha that they would be given 30 minutes to provide a sample or 

they would be disciplined. Price's request that they be permitted to 

return the next morning to provide the samples was refused. At 

approximately 7:20 p.m., they were given five more minutes to produce a 

specimen or be discharged. At 7:30 p.m., they were each given formal 

five-day suspensions with intent to discharge for insubordinate conduct. 

The following morning, March 3, 1987, Price and Vacha had drug screening 

tests at the Emergicare Center (JWR's contract physicians) and at the 

Longview Hospital, respectively. The test results were negative and 

were submitted to JWR. 10 FMSHRC 900-01, 909-10. }/ 

On March 9, 1987, Price and Vacha filed discrimination complaints 

with the Secretary pursuant to 30 U.S.C. § 815(c)(2). As noted, the 

Secretary's application for temporary reinstatement was granted by the 

judge and affirmed by the Conunission. Subsequently, the Secretary filed 

a section 105(c)(2) complaint on their behalf and the UMWA intervened on 

behalf of complainants. A hearing on the merits was held before Judge 

Broderick. 

At the hearing, JWR's Brooks testified that section !I.E. of the 

Drug Program covered all JWR supervisors, safety and associate safety 

inspectors, dust and noise control supervisors, and section and 

maintenance foremen. Tr. 65-66. Safety conunitteemen were also 

included, he stated, because "they have the highest responsibility for 

safety of anybody in the coal mine." Tr. 67. See also Tr. 76, 77. 

Brooks estimated that in carrying out safety-related duties, a safety 

conunitteeman spent about 50% of his working time engaged in safety 

inspections, accompanying MSHA inspectors, and preparing "paper work" in 

the safety office. Tr. 72-75. Brooks had no specific knowledge about 

drug problems among present conunitteemen but, because of their safetyrelated duties, began randomly testing them. Tr. 83. Under section 

!I.E., he eXi>lained, JWR supervisory employees had been tested numerous 

times, "almost every month," and the conunitteemen once. Tr. 86. As 

part of the testing conunenced on March 2, 1987, urine samples were taken 

at the No. 4 Mine from four management safety personnel and the owl 

shift safety conunitteeman. 

In. his decision, Judge Broderick reviewed the Drug Program and its 

implementation, the functions of the safety conunittee, and industry drug 

abuse programs. 10 FMSHRC at 898-906. He found initially that Price 

and Vacha "had physical or psychological difficulties in providing the 

required samples on March 2, 1987, ... [and] did not refuse to submit 

the urine samples, but were unable to do so under the circumstances 

present on the evening of March 2 at the .•. mine." 10 FMSHRC at 905-

06. He also examined JWR's motivation in adopting the Drug Program. He 

rejected arguments by the Secretary and the UMWA that section !I.E. 

}/ Price and Vacha filed grievances over their discharges. On 

April 13, 1987, the arbitrator issued an opinion sustaining the 

discharges. See 10 FMSHRC at 901-02. As discussed at some length in 

Judge Broderick's decision, the judge determined that deference to the 

arbitrator's findings and conclusions was not appropriate. See 

10 FMSHRC at 910-11. 

1525 
intentionally targeted UMWA safety committeemen out of hostile or 

discriminatory motivation: 

There is no evidence that Section !I.E. or any other 

part of the plan was motivated in any part by 

hostility to safety committee members. I accept Mr. 

Brook[s'] testimony that he included safety 

committee members in section !I.E. because he 

believed that they had such a high degree of 

responsibility for safety in the mines. 

10 FMSHRC at 904. 

Notwithstanding the above finding of nondiscriminatory motivation, 

the judge concluded that an operator's policy or program can itself 

violate the Mine Act, regardless of the operator's motivation in 

adopting the program. 9 FMSHRC at 906, citing Local Union 1110, 

UMWA/Robert Carney v. Consolidation Coal Company, 1 FMSHRC 338 (May 

1979). According to the judge, enforcement of such a program against a 

miner or miners' representative can be prohibited under the Mine Act 

irrespective of the operator's motive.. Id. 

The Secretary called as witnesses 17 JWR hourly employees who were 

commit~eemen or officials of the UMWA. Judge Broderick summarized this 

body of testimony as follows: 

The evidence establishes that the miners at JWR 

view mandatory drug testing with varying degrees of 

hostility: many consider it to be accusatory and 

believe that it casts suspicion of drug use on 

persons being tested. They look upon the testing 

procedures followed by JWR as an invasion of privacy 

and an affront to their dignity. Further, some of 

the miners have been exposed to news media reports 

which cast doubt on the accuracy of the testing 

procedures. Thus, they expressed fear that they 

might be erroneously branded as drug users. These 

suspicions and doubts seem to me to have resulted in 

part at least from an inadequate education effort on 

the part of JWR, and from the fact that the program 

was instituted unilaterally, without the 

participation of the unions. 

The members and potential members of the mine 

safety committee reacted negatively and hostilely to 

the provisions of [section] !I.E. which they viewed 

as unfairly singling them out for random testing 

four times annually. As a result of this reaction, 

some committee members have resigned; others have 

considered resigning (only one test has been 

conducted to date because of the pending 

litigation), and further testing may cause further 

resignations. Still others have refused to accept 

safety committee positions or to run for election to 

1526 
them. 

10 FMSHRC at 907. 

The judge then stated: 

Based on this review of the evidence, I conclude 

that one effect of the drug abuse program has been 

to severely limit the independence and therefore the 

effectiveness of the committees. This is true 

without regard to the motivation of JWR in 

instituting the plan. 

10 FMSHRC at 907. After discussing the importance of the safety 

committees at JWR's mines, the judge concluded that the effect of the 

Drug Program was to "diminish" the "rights and responsibilities of the 

miners' representatives" and that, therefore, Section.II.E. was 

"facially in violation of section lOS(c) of the Act." 10 FMSHRC at 907-

08. He further determined that the discharge of Price and Vacha 

"because they refused to participate in the program" was, accordingly, 

in violation of section lOS(c) of the Act. 10 FMSHRC at 908. 

Based on his determination that section !I.E. was facially 

discriminatory, the judge orde~ed that complainants be permanently 

reinstated with back pay and other benefits, that their records be 

expunged of references to their discharge, and that JWR cease 

enforcement of section !I.E. against safety committee personnel. 

10 FMSHRC at 911. In a supplemental remedial decision, the judge 

awarded specific sums of back pay with interest and expenses and 

assessed a civil penalty of $500. 10 ·FMSHRC at 1109-10. 

The judge also proceeded to discuss whether, even if section !I.E. 

is not facially discriminatory, it was discriminatorily applied ·to Price 

and Vacha because of their activities as safety committeemen. The judge 

found that both miners had engaged in protected activity as 

committeemen. Specifically, he found that Price and Vacha had the 

reputation of being safety activists, "notorious" for filing safety 

complaints, and that their numerous safety committee activities were 

"clearly protected" by the Act. 10 FMSHRC 903, 909. 

The judge concluded that the discharge of Price and Vacha was 

motivated in part because of their protected activity as committeemen 

and that complainants had established a prima f acie case of 

discrimination. 10 FMSHRC at 909-10. However, he went on to conclude 

that JWR affirmatively defended by showing that it would have terminated 

them in any event for the unprotected activity of failing to provide a 

urine specimen. 

We granted JWR's subsequent petition for discretionary review, 

which essentially raises three assignments of error: (1) the judge erred 

in holding that JWR's Drug Program violated section lOS(c) of the Act, 

absent proof of any discriminatory motive; (2) the judge erred because 

he failed to weigh JWR's legitimate safety concerns against the 

purported adverse effects of the Drug Program on safety committeemen; 

1527 
and (3) Price and Vacha should not be reinstated because they were not 

discharged for activities protected by the Mine Act. 

In its brief on review, the UMWA replied to the issues raised in 

JWR's petition for review and, in Part III of its brief, further argued 

that the judge had erred in concluding that the Drug Program was not 

discriminatorily applied to Price and Vacha. UMWA Br. 21-27. In 

response, JWR filed a motion to strike the latter portion of the UMWA's 

brief as being outside the proper scope of Commission review. Both the 

UMWA and the Secretary responded in opposition to JWR's motion to 

strike. 

While this proceeding was pending on review, attorneys 

representing JWR in bankruptcy proceedings (different attorneys from 

those representing JWR in this proceeding) filed with the Commission a 

"Notice of Automatic Stay and Notice of Case under Chapter 11 of the 

United States Bankruptcy Code." This summary notice states that JWR, as 

a bankruptcy debtor, has filed a petition for reorganization under 

Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. § 101 et seg. 

(1982) ("Bankruptcy Code"), in the United States Bankruptcy Court for 

the Middle District of Florida, Tampa Division, Case No. 89-9715-8Pl. 

The notice recites a portion of the automatic stay provision of the 

Bankruptcy Code, 11 U.S.C. § 362, and implies that the stay applies to 

this discrimination proceeding. 

Subsequently, the Commission issued an order directing the parties 

to file supplemental memoranda "addressing the question of whether the 

automatic stay provision of 11 U.S.C. § 362(a)(l) applies to this· 

Commission proceeding, with particular reference to the exceptions 

contained in 11 U.S.C. § 362(b)(4) & (5)." The Secretary, the UMWA, and 

the attorneys representing JWR in this discrimination proceeding have 

filed responses, all arguing that this discrimination proceeding is 

excepted from the automatic stay provision of 11 U.S.C. § 362(a)(l). 

The attorneys representing JWR in the bankruptcy proceeding did not file 

a response to the Commission's order. 

II. 

Disposition of Issues 

A. JWR's motion to strike and effect of bankruptcy proceedings 

We address first the threshold matters of JWR's motion to strike a 

portion of the UMWA brief and the effect, if any, of JWR's pending 

bankruptcy petition on this Commission proceeding. With respect to the 

motion to strike, under the Mine Act "[a]ny person adversely affected or 

aggrieved" by a decision of a Commission administrative law judge may 

file with the Commission a petition for discretionary review of the 

judge's decision. 30 U.S.C. §§ 823(d)(2)(A)(i)-(iii). See also 

Commission Procedural Rule 70(a), 29 C.F .R. § 2700. 70(a)-. -In general, 

once such a petition is granted, Commission review is limited to the 

questions raised by the petition, unless pursuant to the provisions of 

the Act, the Commission, ~ sponte, has directed review of other 

issues. 30 U.S.C. §§ 823(d)(2)(A)(iii), (B), & (C). See also 

1528 
Commission Procedural P·1les 70(f) & 71, 29 C.F .R. §§ 2700. 70(f) & 71. 

Here, the Secretary and the UMWA obtained below a favorable judgment 

awarding complainants the remedial relief sought. Therefore, it is not 

surprising that, as the prevailing parties, they did not file a petition 

for discretionary review in this matter objecting to those findings and 

conclusions of the judge that rejected certain of their positions. 

After JWR filed its petition for review, the Secretary and UMWA 

were not compelled to file cross-petitions for review in order to 

preserve their right to raise on review certain objections to other 

portions of the judge's decision. Rather, adopting the general federal 

rule of appeal, we hold that, in such circumstances, the 11 appellee 11 may 

urge in support of the judgment below any matter or issue appearing in 

the record, even if it involves an objection to some aspect of the 

judge's reasoning or issue resolution, so long as the appellee does not 

seek to attack the judgment itself or to enlarge its rights thereunder, 

in which case it would be obliged to file a cross-petition for 

discretionary review. See, ~· Dandridge v. Williams, 397 U.S. 471, 

475-76 n.6 (1970); United States v. American Ry. Exp. Co., 265 U.S. 425, 

435-36 (1924); Freeman v. B&B Assoc., 790 F.2d 145, 151 (D.C. Cir. 

1986). The UMWA's attack in Part III of its brief on the judge's 

resolution of the issue involving application of the Drug Program to 

Price and Vacha is based on matters in the record, is not inconsistent 

with the judgment of discrimination rendered below and does not seek any 

greater relief than already granted. Accordingly, upon consideration of 

JWR's motion to strike and the responses thereto, we deny JWR's motion. 

Concerning the effect of the bankruptcy proceeding, we concur with 

the parties that this matter falls within the exceptions to the 

automatic stay provisions of the Bankruptcy Code. As a preliminary 

matter, we hold that we possess jurisdiction in this proceeding to 

determine tne effect, if any, of the bankruptcy matter on continuation 

of this proceeding. See,~· Brock v. Morysville Body Wks., Inc., 829 

F.2d 383, 385-87 (3rd Cir. 1987); NLRB v. Edward Cooper Painting, Inc., 

804 F.2d 934, 938-39 (6th Cir. 1986). 

As pertinent here, section 362 of the Bankruptcy Code provides: 

Except as provided in subsection (b) of this 

section, a petition filed under section 301 •.. of 

this title ..• operates as a stay, applicable to all 

entities, of--

(1) the commencement or continuation, including 

the issuance or employment of process, of judicial, 

administrative, or other action or proceeding 

against the debtor that was or could have been 

commenced before the commencement of the case under 

this title, or to recover a claim against the debtor 

that arose before the commencement of the case under 

this title; (2) the enforcement, against the debtor 

or against property of the estate, of a judgment 

obtained before the commencement of the case under 

this title •••• 

1529 
* * * 

(b) The filing of a petition under section 301 

of this title does not operate as a stay --

* * * 

(4) under subsection (a)(l) of this section, of 

the commencement or continuation of an action or 

proceeding by a governmental unit to enforce such 

governmental unit's police or regulatory power; 

(5) under section (a)(2) of this section, of the 

enforcement of a judgment, other than a money 

judgment, obtained in an action or proceeding by a 

governmental unit to enforce such governmental 

unit's police or regulatory power .••. 

11 U.S.C. § 362(a) & (b). 

The term "governmental unit" is defined in the Bankruptcy Code, in 

relevant part, as the "United States; ••. department, agency, or 

instrumentality of the United States •... " 11 U.S.C. § 101(?6). There 

is no question that the Secretary, Department of Labor, and Mine Safety 

and Health Administration are all "governmental units" within the 

meaning of the Bankruptcy Code. Cf. Edward Cooper Painting, 804 F.2d at 

942; NLRB v. Evans Plumbing Co., 639 F.2d 291, 293 (5th Cir. 

1981)(concluding that NLRB is a "governmental unit"). 

The present case was brought by the government, through the 

Secretary, to effectuate and protect the rights secured by section 

105(c)(l) of the Mine Act. This is the kind of "police or regulatory" 

action covered by the exception to the automatic stay. Cf. EEOC v. Rath 

Packing Co., 787 F.2d 318, 323 (8th Cir. 1986). See als~Mor~sville 

Body Wks., 829 F.2d at 388; Edward Cooper Painting, 804 F.2d at 942; 

Secretary on behalf of George W. Heiney & John Ghramm v. Leon's Coal 

Co., 4 FMSHRC 572, 574-75 (April 1982)(ALJ). Accordingly, we conclude 

that the present proceeding is not subject to the automatic stay 

provisions of section 362(a)(l). 

Section 362(b)(5) also excepts from automatic stay "enforcement of 

a judgment, other than a money judgment, obtained in an action or 

proceeding by a governmental unit to enforce such governmental unit's 

police or regulatory power •.•• " (Emphasis added.) The courts have 

recognized that adjudicatory bodies presiding over a governmental 

"police or regulatory" action may enter a money judgment against a 

respondent-debtor but may not permit collection of that pecuniary 

judgment in an enforcement action • .!:..s..:_, Morysville Body Wks., 829 F.2d 

at 389; Edward Cooper Painting, 804 F.2d at 942-43; Rath Packing, 787 

F.2d at 325-27. See also H.R. No. 595, 95th Cong., 1st Sess. 343 

(1977), reprinted in 1978 U.S. Code Cong. & Ad. News 5963, 6299. Here, 

were a finding of JWR's liability ultimately made, judgment could be 

entered "to fix damages for violation of the law." The enforceability 

of such a judgment is a matter for other forums. 

1530 
For the foregoing reasons, we proceed to a disposit~~n of this 

case. 

B. Is section !I.E. of JWR's Drug Program Facially 

Discriminatory? 

The general principles applicable to analysis of discrimination 

issues under the Mine Act are settled. In order to establish a prima 

facie case of discrimination under section 105(c) of the Act, a 

complaining miner bears the burden of production and proof in 

establishing that (1) he engaged in protected activity and (2) the 

adverse action complained of was motivated in any part by that protected 

activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 

2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); 

Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 

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. If-an 

operator cannot rebut the prima facie case in this manner, it 

nevertheless may defend affirmatively by proving that it also was 

motivated by the miner's unprotected activity and would have taken the 

adverse action in any event for the unprotected activity alone. Pasula, 

supra; Robinette, supra. See also, ~, Eastern Assoc. Coal Corp. v. 

FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford 

Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Baich v. 

FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically approving the 

Commission's Pasula-Robinette test). Cf. NLRB v. Transportation 

Management Corp., 462 U.S. 393, 397-413 (1983)(approving nearly 

identical test under National Labor Relations Act). 

This is the first discrimination case before the full Commission 

that involves issues of workplace substance abuse programs and we begin 

by placing that subject in perspective under the Mine Act. 

Nothing in the Mine Act bars a mine operator from adopting a 

substance abuse control program. The problem of drug abuse in society 

and the effects of that problem on the workplace are well documented. 

As the judge noted: 

On September 15, 1986, the President of the United 

States issued an Executive Order, entitled Drug-Free 

Federal Workplace, in which he stated that "[D]rug 

use is having serious adverse effects upon a 

significant proportion of the national work force 

and results in billions of dollars of lost 

productivity each year." The Senate Commerce 

Committee in Senate Report 100-43, lOOth Cong. 1st 

Sess., to accompany S. 1041 filed April 10, 1987, 

found that "Drug and alcohol abuse has become an 

increasing problem in the workplace. Substance 

abuse leads to impaired memory, lethargy, reduced 

coordination, and a whole series of changes in 

heart, brain, and lung functions. These symptoms in 

1531 
workers have resulted in lost productivity for 

American businesses of as much as $100 billion a 

year, with significant increases in employee 

accident rates, health care costs, and absenteeism." 

10 FMSHRC at 903. Indeed, in the context of the mining occupation, 

adoption of a reasonable substance abuse program could advance the 

safety and health goals of the Mine Act. We note also the Secretary's 

statement that she·"is not contending that substance abuse programs are 

per se unlawful or discriminatory" under the Act and that she "supports 

the goal of a drug free work place." Sec. Br. 1 & n. 1. 

We emphasize, however, that the Commission's jurisdiction to 

entertain and resolve disputes involving substance abuse programs is 

limited. As we previously observed: "[T]he Commission does not sit as a 

super grievance board to judge the industrial merits, fairness, 

reasonableness, or wisdom of JWR's [Drug Program] apart from the scope 

and focus appropriate to analysis under section lOS(c) of the Mine Act." 

9 FMSHRC at 1307. Our limited purpose is to focus simply on whether the 

Drug Program or enforcement of some component thereof conflicts with 

rights protected by the Mine Act. 

The judge found section ILE. of the Drug Program to be "facially 

discriminatory" because it "singled out" safety committeemen from JWR's 

other hourly employees for mandatory drug testing and because of the 

reaction of safety committeemen and potential safety committeemen to the 

program, which limited the safety committees' effectiveness. We 

disagree with the judge that JWR's Drug Program is facially in violation 

of section lOS(c) of the Mine Act. 

The Mine Act broadly defines "miner" as "any individual working in 

a coal or other mine .... " 30 U.S.C. § 802(g) (emphasis added).!±_/ 

Section II. E. of the Drug Progr·am applies to a portion of JWR' s 

"miners"; some were salaried or supervisory employees, and some were 

hourly, nonsupervisory employees -- all are "miners" under the Mine Act. 

Therefore, the safety committeemen were not the only "miners" subject to 

mandatory testing under JWR 1 s Drug Program. Stated otherwise, safety 

committeemen were not "singled out" from all other "miners" at JWR's 

mines. 

The Secretary and the UMWA imply that the inclusion of safety 

committeemen, alone among JWR's hourly employees, evidences 

discrimination against them. Not every classification or difference in 

the treatment of employees, however, amounts to illegal "discrimination," especially where there is sufficient lawful reason for the 

challenged distinction. We hold that, on this record, JWR advanced 

adequate and reasonable business justification for including safety 

committeemen, along with the other employees whose job duties involved 

!!_/ It is to be noted that the safety committeemen at JWR's mines 

derive their offices, not from the Act or the Secretary's implementing 

standards and regulations, but wholly from the parties' private 

contractual agreement. 

1532 
safety matters·, in tr . .; pool of miners subject to the drug testing 

provisions of section !I.E. The evidence clearly shows that section 

!I.E. was targeted at miners whose duties have a substantial impact on 

miner safety. The evidence further reflects, and the judge so found, 

that JWR genuinely believes that a substance abuse problem existed among 

its employees, that the effects of any such abuse are most dangerously 

manifested in job functions involving safety, that section !I.E. is 

designed to address this situation, and that it was adopted for nondiscriminatory reasons. 

There is no dispute that the safety committeemen spent up to 50% 

of their time engaged in safety matters. Brooks testified that safety 

committeemen had "the highest responsibility for safety of anybody in 

the coal mine. 11 Tr. 67. It may be true that other hourly job 

classifications also have a substantial impact on miner safety. Indeed, 

from a general perspective, all miners' work activities affect safety. 

Given that a mine operator may adopt a substance abuse program, however, 

section 105(c) cannot be read as compelling mandatory drug testing of 

all miners because testing is to be a part of the program. Absent a 

showing of discriminatory motivation, nothing in section 105(c) 

precludes an operator from proceeding in a gradual, incremental, or 

limited manner, by first targeting for drug testing certain job 

classifications that are viewed in good faith as being the most safety 

sensitive positions. Stated otherwise, an operator is not required by 

the Mine Act to remedy all aspects of a perceived substance abuse 

problem or none at all. Cf., ~' Fisher v. Secretary, 522 F.2d 493, 

500, 502 (7th Cir. 1975). 

We accept the judge's characterization of the testimony of the 

safety committeemen as showing that many committeemen opposed and 

disliked implementation of section !I.E. However, a miner's opposition 

or hostility to an operator's business policy is not determinative of 

the validity of that policy under section 105(c) of the Mine Act. An 

adverse action under section 105(c) of the Mine Act is not simply any 

operator action that a miner does not like. Secretary on behalf of 

Chester Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1848 n. 2 

(August 1984). The personal feelings of opposition and hostility to 

section !I.E. held by safety committeeman, as found by the judge, are 

insufficient to establish that section !I.E. was discriminatory. Again, 

we note that the burdens imposed by section II.E fell equally on JWR's 

supervisory staff. 

Thus, we find that substantial evidence and applicable legal 

principles do not support the judge's determination that section !I.E. 

was facially discriminatory. Accordingly, we reverse the judge's 

finding of a violation of section 105(c) under the theory of facial 

discrimination. 

C. The application of section !I.E. of JWR's Drug Program to 

complainants 

The judge concluded that section !I.E. of JWR's Drug Program had 

not been discriminatorily applied to Price and Vacha. The judge's 

findings that Price and Vacha had engaged in protected activities and 

1533 
that their termination was motivated, at le··~t in part, by their 

protected activities are supported by substantial evidence and are 

consistent with controlling precedent. Accordingly, we affirm the 

judge's conclusion that Price and Vacha established a prima facie case 

of discriminatory discharge. 

The judge also found that, although the complainants had made out 

a prima facie case of discriminatory discharge, JWR had defended 

affirmatively by showing that it would have fired them in any event for 

the unprotected activity alone of failing to provide the requested urine 

specimens. 10.FMSHRC at 909-910. As explained above, an operator 

proves an affirmative defense pursuant to the Pasula-Robinette test if 

it shows that (1) it was also motivated by the miner's unprotected 

activities, and (2) would have taken the adverse action in any event for 

the unprotected activities alone. As we have explained: 

[T]he 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 out 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. 

Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). As a 

corollary to these principles, it follows that an operator does not 

establish a Pasula-Robinette affirmative defense if a work rule or 

policy that the miner is alleged to have violated, was applied 

discriminatorily to the miner or in a manner deliberately calculated to 

render his compliance difficult or impossible. In such cases, the 

claimed •iindependent" basis for discipline is actually an extension of 

the operator's discriminatory conduct. Further, pretext may be found, 

for example, where the asserted justification is weak, implausible, or 

out of line with the operator's normal business practices. ~' Haro, 

supra, 4 FMSHRC at 1937-38. Ultimately, the operator must show that the 

justification is credible and would have legitimately moved it to take 

the adverse action in question. ~' Haro, 4 FMSHRC at 1938. Here, 

the judge has entered a number of findings, not fully explained in his 

analysis of JWR's affirmative defense, that raise these issues. 

The judge found that prior to the attempted urine sampling at 

issue, both Price and Vacha had been subjected to supervisory "joking" 

concerning their future testing: 

Prior to March 2, there was considerable discussion 

and joking about the program among union employees 

and management officials. In the subject mine, much 

of the joking was directed at Price. In 

1534 
November 1986, Price told Wyatt Andrews, the mine 

safety inspector and Bob Hendricks, associate safety 

inspector that he had difficulty urinating in front 

of others. Hendricks laughed and made a vulgar 

remark to Price. In later November or early 

December a urine specimen bottle was exhibited on 

Wyatt Andrews' desk with a label on it reading "Mike 

Price UMWA." Andrews laughed when Price saw the 

bottle. It remained in the safety office for at 

least two days before Rayford Kelly directed that it 

be removed. Andrews and another safety inspector 

had on two occasions jokingly thrust an empty ... 

cannister and an empty coca cola toward Price and 

Vacha telling them that they were practice piss 

cups. Later a styrofoam cup with Price's name and 

the notation "practice cup" written on it was 

displayed in the safety office. All these incidents 

took place prior to March 2, 1987. 

10 FMSHRC at 900. The judge also determined that the complainants did 

not refuse to submit urine specimens on March 2 but had genuine 

"physical or psychological difficulties" in providing the requested 

samples. 10 FMSHRC at 904-06. He further noted that Price and Vacha 

had drug screening tests performed at the Emergicare Center (JWR's 

contract physicians) and at the Longview Hospital, respectively, the 

next day and submitted the results, which were negative, to JWR. 

10 FMSHRC at 901. The judge stated that Price and Vacha "were unable" 

to provide urine samples "under the circumstances present on the evening 

of March 2 at the subject mine." 10 FMSHRC at 906. 

At the other JWR mines, the Industrial Relations supervisor 

oversaw the urine sampling; at the No. 4 Mine, the supervision of urine 

collection was delegated to Andrews and Hendricks. 10 FMSHRC at 909. 

Thus, the actual testing of Price and Vacha was carried out by those who 

had made the earlier jokes, i.e., Andrews and Hendricks. Id. 

In some of the mines, those supervising the 

collection did not go into the bathroom with those 

giving the samples. No accommodation was offered 

Price and Vacha when they claimed inability to 

produce urine specimens, though some accommodation 

was given others involved in the drug screening 

program. 

10 FMSHRC at 909. Similarly, in its brief on review, the UMWA points to 

evidence in the record showing that the manner of testing Price and 

Vacha was different from the testing procedures followed at other mines, 

that JWR accommodated other miners who.experienced difficulty urinating 

on demand, and that similar discipline was not meted out to those other 

miners. UMWA Br. 24-25. 

We find that the judge did not fully examine and explain, in the 

context of ruling on JWR's affirmative defense, the impact of the 

evidence summarized above. If, in fact, Price and Vacha were fired for 

1535 
failing t~ comply with discriminatorily applied drug testing procedures 

or if those procedures were deliberately manipulated to contribute to 

such failure, a Fasula-Robinette affirmative defense based on those same 

procedures cannot stand. In other words, a discharge for failure to~~ 

comply with a discriminatorily implemented work order would not satisfy 

the affirmative defense requirements of Commission precedent. 

Based on the above concerns, we remand this matter to the judge 

for the narrow purpose of analyzing and explaining the impact of the 

evidence discussed above on JWR's attempt to establish an affirmative 

defense. On remand, the judge shall provide all parties with the 

opportunity to brief the merits of the issues being remanded. 

1536 
IV. 

Conclusion 

For the foregoing reasons, we reverse the judge's conclusion that 

section II.E. of JWR's Drug Program is facially discriminatory in 

violation of section lOS(c) of the Mine Act. With respect to the 

application of the Drug Program to Price and Vacha, we vacate that 

portion of the judge's decision in which he concluded that JWR 

affirmatively defended against the prima f acie case of discrimination 

established by the complainants. We return this case to the judge for 

further findings and analysis on that subject as explained above. 

Accordingly, this matter is remanded for further proceedings consistent 

with this opinion. 

L. Clair Nelson, Commissioner 

1537 
Commissioner Lastowka, concurring in part and dissenting in part: 

I agree with my colleagues that this matter falls within the exceptions 

to the automatic stay provisions of the Bankruptcy Code and that the Commission 

may therefore proceed to a disposition of the proceeding before us. I also 

concur fully in the conclusion, and the rationale in support thereof, that 

Section II. E. of JWR's Drug Program is not facially violative of section 105(c) 

of the Mine Act. I must respectfully dissent, however, from the majority's 

denial of JWR' s motion to strike that part of intervenor UMWA' s brief challenging 

the judge's conclusion that the specific application of JWR's Drug Program to 

Price and Vacha did not violate section 105(c). As explained below, JWR's motion 

to strike is well-founded and should be granted. As further explained, I would 

remand to the administrative law judge for entry of a final, appealable order 

concerning the specific application of the drug program. 

The statutory procedure governing the raising of issues in review 

proceedings before the Commission is specific and express. Under section 113(d) 

of the Mine Act "any person adversely affected or aggrieved" by a decision of 

a Commission administrative law judge may petition the Commission for 

discretionary review of the judge's decision. 30 U.S.C. § 823(d)(2)(A)(i); 29 

C.F.R. § 2700.70(a). If such a petition for discretionary review is granted, 

the Commi$sion' s review authority is limited to the issues raised in the 

petition. 30 U.S.C § 823(d)(2)(A)(iii); 29 C.F.R. § 2.700.70(f); Chaney Creek 

Coal Corp. v. FMSHRC, 866 F.2d 1424, 1429 (D.C. Cir. 1989); Secretary v. PhelpsDodge Corp., 709 F.2d 51 (D.C.Cir 1983). Additional issues can be considered 

only if the Commission sua sponte directs such other issues for review within 

30 days of the administrative law judge's decision. Chaney Creek; Phelps-Dodge; 

30 U.S.C. § 823(d)(2)(B); 29 C.F.R. § 2700.71. 

Based on this statutory review scheme, JWR has filed a motion to strike 

a portion of intervenor UMWA' s brief. JWR emphasizes that its petition for 

discretionary review was the sole petition for review filed, and that its 

petition challenged only the administrative law judge's conclusion that Section 

II.E. of JWR's Drug Program is facially discriminatory. JWR further notes that 

neither the Secretary nor intervenor UMWA petitioned the Commission to review 

the judge's conclusion that JWR's specific application of the drug program to 

Price and Vacha did not violate section 105 ( c). Nor did the Commission sua 

sponte direct any additional issues for review pursuant to section 113(d)(2)(B). 

Therefore, according to JWR, that portion of the UMWA's response brief arguing 

that the judge erred in concluding that the drug program was not discriminatorily 

applied raises an issue that was not brought before the Commission in accordance 

with the governing statutory review scheme. 

In opposition to JWR's motion to strike, the UMWA and the Secretary make 

essentially the same arguments. They note that Price and Vacha prevailed on 

their claim that Section II.E. is facially discriminatory. As a result, they 

assert that Price and Vacha were awarded the full measure of the relief they 

sought including reinstatement, back pay, expungement of personnel files and the 

cessation of enforcement of Section !I.E. against safety committeemen. 

Therefore, the Secretary and the UMWA submit, Price and Vacha were not "adversely 

affected or aggrieved" by the judge's decision within the meaning of section 

113(d), and they lacked standing to appeal the judge's denial of the "as applied" 

153'8 
theory of discrimination. 

The Secretary and the UMWA further assert that the UMWA's brief properly 

challenges the judge's findings and conclusions addressing whether Section II.E. 

was discriminatorily applied to Price and Vacha. They argue that under settled 

principles of appellate review a party "may offer in support of his judgment any 

argument that is supported by the record, whether it was ignored by the court 

below or flatly r~jected." Sec. Response at 5, citing 9 Moore's Federal 

Practice, § 204.11 [3] at 4-45; UMWA Response at 4-5. They submit that the 

argument in the l!MWA's response brief challenging the judge's "as applied" 

findings simply offers the Commission an allowable alternative ground for 

affirmance of the judge's decision in favor of Price and Vacha. My colleagues 

in the majority embrace this theory, "adopting the general federal rule of 

appeal." Slip op. at 9. 

I disagree. As I read section 113(d) of the Mine Act, JWR's motion to 

strike must be granted. Were the Commission operating within a more traditional 

appellate review scheme, I would have little hesitation in proceeding to address 

the additional issue raised in the UMWA's brief. Under the federal rules of 

procedure and the case law relied on by the Secretary and the UMWA, the filing 

of a cross-appeal, or the urging of other error the correction of which offers 

an additional basis for affirmance, would be appropriate vehicles for expanding 

the scope of the issues on appeal. The problem, however, is that the 

Commission's review authority differs substantially from that found in the 

typical appellate review model. The unique statutory review scheme set forth 

in section 113(d) of the Mine Act more closely constrains the Commission's review 

authority. Parties are not free to raise and the Commission is not free to 

consider issues that have not been directed for review pursuant to section 

113(d). 30 U.S.C. § 823(d); Chaney Creek Coal Corp., supra; Phelps-Dodge Corp., 

supra. 

I cannot accept the Secretary's and the UMWA's explanation that they are 

not seeking to have the Commission resolve an "additional" issue, but are 

offering only an alternative ground in support of the ,Judge's finding of 

discrimination. Although the "facially violative" and "as applied" theories were 

both offered to prove that Price and Vacha had been discriminated against under 

section 105(c)(l), the material facts and relevant law bearing on these theories 

of discrimination are quite separate and distinct. In its petition for 

discretionary review JWR challenged only the judge's findings and conclusions 

bearing on the "facially violative" theory. To nevertheless proceed to review 

the correctness of the judge's discussion concerning the "as applied" theory, 

as tempting as it may be in terms of appellate convenience, is to ignore the 

constraints of section 113(d). In this regard it is important to note that JWR 

has identified some of its own disagreements with the judge's discussion 

concerning the specific application of the drug program to Price and Vacha, but 

JWR correctly acknowledges that these disagreements were not placed before the 

Commission through its petition for review. JWR Motion to Strike at 5. 

For these reasons I would grant JWR' s motion to strike Part II I of 

intervenor UMWA's brief. 

1539 
In my view, however, granting the motion to strike would not end the 

Commission's deliberations concerning the procedural consequences of the judge's 

statement that the specific application of the drug program to Price and Vacha 

did not violate section 105(c) of the Mine Act. In its motion to strike JWR 

asserts that Price and Vacha were "adversely affected or aggrieved" within the 

meaning of section 113(d) by the discussion of the "as applied" theory of 

discrimination contained in the judge's decision. The implication of JWR's 

argument is that, because Price and Vacha did not petition for review of the 

judge's "as applied" discussion, the judge's conclusions in that regard are final 

and unreviewable. 30 U.S.C. § 823(d)(1). 

The Secretary and the UMWA counter by arguing that Price and Vacha were 

not "adversely affected or aggrieved" because, in prevailing on their "facially 

violative" theory, they had been awarded all of the relief they had sought. 

They assert that Price and Vacha were fully satisfied by the judge's award, were 

not injured thereby, and therefore lacked standing under section 113(d) to obtain 

review of the judge's decision. Sec. Response at 33-4; UMWA Response at 5-6. 

I agree. 

In the posture of the proceeding before us, the portion of the judge's 

decision denying Price and Vacha' s "as applied" theory of recovery did not 

constitute a final, adverse disposition against Price and Vacha within the 

meaning of section 113(d) of the Mine Act. The conclusive, determinative holding 

by the judge was his conclusion that Price and Vacha had been disc;:riminated 

against by JWR in violation of section 105(c). It was this holding that formed 

the basis for his award of remedial relief to Price and Vacha and that caused 

a party, JWR, to be "adversely affected or aggrieved". In the absence of any 

appeal of the judge's decision, only JWR, not Price and Vacha, would have been 

damaged as a result of the judge's decision. The judge's further discussion 

indicating that he would deny the alternative theory of recovery was not 

essential to his finding of liability and , was unnecess~ry. Therefore, the 

judge's comments in this regard did not adversely affect or aggrieve Price and 

Vacha within the meaning of section 113(d). 1 

1 As has been stated: 

[T]he general rule is that a party who has obtained full 

relief in the court below on a particular theory or 

ground is not entitled to appeal from the judgment to 

procure relief on other theories or grounds advanced by 

him below. 

Annotation, Right of Winning Party to Appeal from Judgment Granting him Full 

Relief Sought, 69 A.L.R. 2d 701, 736-37 (1960). See also 4 Am. Jur. 2d Appeal 

and Error§ 185 (1962). 

1540 
Accordingly, I would remand this proceeding to the administrative law 

judge for entry of a final dispositional order concerning the "as applied" theory 

of discrimination advanced by Price and Vacha. I would direct the judge to allow 

the parties the opportunity to make any additional arguments either in opposition 

to or in support of the discussion of the "as' applied" theory of discrimination 

set forth in his prior decision. Any party adversely affected or aggrieved by 

the entry of the judge's final order on remand could then petition the Commission 

for review of this aspect of his decision. 

For these reasons, I concur in part and dissent in part. 

1541 

James A. Lastowka 

Commissioner 
Chairman Ford, concurring in part and dissenting in part: 

I join with my colleagues in reversing the judge's determination 

that Jim Walter Resources' Drug Program is discriminatory on its face 

and violative of section lOS(c) of the Mine Act, 30 U.S.C. § 815(c). As 

to the automatic stay provisions of the Bankruptcy Code and the 

exceptions thereto, I further concur that the instant proceeding falls 

within the exceptions set forth in section 362(b) of the Code, 11 U.S.C. 

§ 362(b). With respect to the majority's disposition of JWR's motion to 

strike Part III of the UMWA's reply brief, I am constrained to 

reluctantly and respectfully dissent in view of the tightly 

circumscribed scope of Commission review set forth in section 113(d)(2) 

of the Mine Act, 30 U.S.C. 823(d)(2). 

Although general federal appellate procedure may permit an 

appellee to offer alternative grounds to support an ultimate judgment -

even those rejected by the judge below - the Mine Act by its clear terms 

constricts that option here. Section 113(d)(2) of the Act states that 

"review shall be limited to the questions raised by the petition" and 

that "the Commission shall not raise or consider additional issues in 

such review proceedings" unless it has complied with the proc~dures and 

criteria for granting~ sponte review. (Emphasis added). The issue 

of whether JWR's Drug Program was discriminatorily applied to Price and 

Vacha was not raised in JWR's petition for discretionary review, nor was 

it directed for review ~ sponte. It arose solely as a component of 

the UMWA's reply brief filed well outside the 30 day time limit for 

filing petitions under the Act. 

The UMWA and the Secretary argue that they were not "adversely 

affected or aggrieved by [the] decision" of the judge so that there was 

no reason for them to file a petition for discretionary review. There 

is, however, a distinction here between a "judgment", i.e., a favorable 

outcome for the appellees, and the "decision" itself, and it is the term 

"decision" to which section 113(d)(2) refers. In this instance the 

judge's decision is composed of two distinct parts, each involving 

separate allegations of discriminatory treatment, separate legal 

theories to support those allegations, and separate modes of analysis to 

resolve the issues raised. Indeed, one might argue that within the 

single docket the judge was deciding two discrete cases: one generic 

case brought in the names of Price and Vacha on behalf of all safety 

committeemen against the Drug Program as designed (the "facially 

discriminatory" case), and one brought exclusively by Price and Vacha 

and involving only their particular relationship to and interaction with 

JWR and its Drug Program (the "discriminatorily applied" case). In that 

context it cannot be said that the judge's decision with respect to the 

latter case was not adverse to Price and Vacha. ~/ 

~/ The two matters were even tried somewhat separately. Price and 

Vacha did not testify at the hearing on the merits. Testimony at that 

hearing on behalf of the Secretary and the UMWA was predominately 

provided by safety committee members or potential members who were not 

disciplined but who testified to the inhibitive effects of the Drug 

1542 
Appellees also object ,.u practical grounds to the filing of 

"protective" petitions for discretionary review by prevailing parties, 

characterizing such a requirement as "meaningless", "cumbersome," and 

"nonsensical." Given the time and treasure expended in this case, the 

odds of JWR's appealing the "facially discriminatory" is~so as to 

place the judge's determination thereon at risk were extremely high. In 

such circumstances a protective petition for discretionary review would 

not have been meaningless but would have been prudent. Furthermore, the 

judge's decision was issued on August 26, 1988 and JWR's petition was 

filed on September 20, 1988, thus leaving the Secretary, the UMWA, or 

both five days to file a pro forma petition on the "discriminatorily 

applied" issue. In any event, the procedural fault at issue lies with 

the restrictive review scheme devised by Congress and both the 

Commission and the parties are bound by it. 

In summary, Part III of the UMWA's brief raises important issues 

and compelling arguments. Unfortunately, at this juncture, I find no 

means by which the Commission can resurrect the "discriminatorily 

applied" charge when the statute limits our consideration to those 

issues contained within the four corners of the only petition for 

discretionary review before us. Chaney Creek Coal Corp. v. FMSHRC, 866 

F.2d 1424, 1429 (D.C. Cir. 1989). 

Accordingly, I would grant the motion to strike and dismiss the 

proceeding. 

Program generally and its impact upon their decisions to continue 

serving as committeemen or to run for committee office. That testimony 

went only to the "facially discriminatory" issue. The "discriminatorily 

applied" issue was tried in the June 29, 1987 hearing on temporary 

reinstatement wherein Price and Vacha testified to the specific 

circumstances under which they were subjected to random drug testing 

under the Drug Program, their history of activism as safety 

committeemen, and their perceptions of a retaliatory link between the 

two. Secretary/Price and Vacha v. Jim Walter Resources, Inc., 9 FMSHRC 

1305 (August 1987). 

1543 
Distribution 

John W. Hargrove, Esq. 

Bradley, Arant, Rose & White 

1400 Park Place Tower 

Birmingham, Alabama 35203 

Colleer. A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Don M. Stichter, Esq. 

Stichter & Reidel, P.A. 

100 Madison Street 

Tampa, Florida 33602 

Edward LoBello, Esq. 

Levin, Weintrauo & Grames 

225 Broadway 

New York, New York 10007 

Patrick K. Nakamura, Esq. 

Longshore, Nakamura & Quinn 

2101 City Federal Bldg. 

Birmingham, Alabama 35203 

Administrative Law Judge James A. Broderick 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1544 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF. LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WESTERN FUELS-UTAH, INC. 

August 22, 1990 

Docket Nos. WEST 86-113-R 

WEST 86-114-R 

WEST 86-245-(A) 

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

Conunissioners 

ORDER 

BY THE COMMISSION: 

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. (1988)("Mine Act" or "Act"), is before us on remand from an opinion 

of the United States Court of Appeals for the District of Columbia 

Circuit reversing our prior decision in this matter. Secretary of Labor 

v. Western Fuels-Utah, Inc., & FMSHRC, 900 F.2d 318 (1990), rev'g, 

Jl FMSHRC 278 (March 1989). At issue is whether supervisors who meet 

the training certification requirements for supervisory personnel under 

a state program approved by the Depa~tment of Labor's Mine Safety and 

Health Administration ("MSHA") must be given task training prior to 

performing work for which non-supervisory miners would be required to 

have task training. 

MSHA cited Western Fuels-Utah, Inc. ("Western Fuels") for a 

violation of section llS(a) of the Mine Act, 30 U.S.C. § 825(a), and 

JO C.F.R. § 48.7 for failing to task train one of its section foremen in 

the operation of a roof-bolting machine prior to his using that machine. 

Section 115(a)(4) of the Act and section 48.7 of the Secretary of 

Labor's implementing regulations require task training for "miners"; as 

relevant, 30 C.F.R. § 48.2(a)(l)(ii) excludes from the definition of 

"miners" subject to such task training "[s]upervisory personnel subject 

to MSHA approved State certification requirements." In proceedings 

before Conunission Administrative Law Judge Roy J. Maurer, Western Fuels 

argued that the foreman in question was exempt from the task training 

requirements pursuant to the plain language of the exclusion in section 

48.2(a)(l)(ii), supra. Accepting the Secretary's construction of the 

1545 
applicable regulations, Judge Maurer concluded that task training of the 

foreman was required because the supervisory exemption applies only to a 

supervisor actually and primarily engaged in supervision and not to one 

engaged in the extraction and production process. The judge concluded 

that Western Fuels had violated the cited provisions of the Act and 

regulations and assessed a civil penalty of $180. 9 FMSHRC 1355 

(August 1987)(ALJ). We granted Western Fuels' petition for 

discretionary review, which was limited to the issue of whether the 

judge erred in his i~terpretation of the meaning of the supervisory 

exemption. 

In our prior decision, we disagreed with the judge. We held that 

the language of section 48.2(a)(l)(ii) "means what it says, that 

supervisory personnel subject to MSHA approved State certification 

requirements are exempt from the [relevant] training ... requirements." 

11 FMSHRC at 282. We determined: "The exclusion of 'supervisory 

personnel' from the definition of ['miners' subject to the training 

requirements in issue] has a plain meaning apparent from any reasonable 

reading of the regulation. '[S]upervisory personnel' means individuals 

who are supervisors. Supervisors are persons having authority delegated 

by an employer to supervise others." 11 FMSHRC at 283. Because it was 

undisputed that the foreman in question was a mine foreman certified 

under an MSHA approved State program, it followed that he was exempt 

from the cited training requirements. In reaching this conclusion, we 

rejected the Secretary's interpretation of section 48.2(a)(l)(ii), which 

we found flatly contradicted by the plain and unambiguous language of 

the regulation. 11 FMSHRC at 284-87. 

The Secretary appealed our decision. In a 2-1 opinion, the D.C. 

Circuit reversed. The Court subscribed to the Secretary's 

interpretation of the regulation. The Court held that the supervisory 

exemption applies only to the extent that a supervisor is actually 

engaged in the act of supervising and does not apply once the person 

diverts from supervision to actual operation of mining equipment. 

Western Fuels-Utah, supra, 900 F.2d at 320-23. The Court stressed its 

belief that its deference to the Secretary's position was required as a 

matter of law. 900 F.2d at 321, 323. We note the observation of 

dissenting Circuit Judge Edwards that "[t]he Secretary of Labor •.. 

seeks to overturn the judgment of the Commission because, to put it 

starkly, the regulation should not be held to mean what it says." 900 

F.2d at 323 (Edwards, J., dissenting). 

1546 
We are obliged to conform to the judgment of the Court in this 

matter. No other issue remains for disposition in this proceeding. 

Accordingly, the judge's decision and assessment of civil penalty are 

reinstated. "!:.../ 

Richard V. Backley, Conunissio 

g~le~~ ... 1.# 

A. 

L. ~/~ Clair Nelson, Conunissioner 

*/ The Conunission contacted both parties administratively and 

determined that neither party wished to be further heard on remand. 

1547 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 23, 1990 

UNITED MINE WORKERS OF AMERICA, 

LOCAL UNION 1769, 

DISTRICT 22 

v. 

UTAH POWER AND LIGHT COMPANY, 

MINING DIVISION 

Docket No. WEST 87-86-C 

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

Commissioners 

DECISION 

BY: Backley, Lastowka and Nelson, Commissioners 

This compensation proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). 

Commission Administrative Law J~dge John J. Morris granted the motion of 

Utah Power and Light Company ( 11UP&L11 ) to dismiss this proceeding after a 

settlement agreement was executed by UP&L and the United Mine Workers of 

America ("UMWA" or "Union"). 11 FMSHRC 1641 (ALJ)(September 1989). We 

granted the UMWA's petition for discretionary review. The principal 

issue presented on review is whether the judge erred in granting UP&L's 

motion to dismiss. For the reasons that follow, we affirm the judge's 

decision. 

I. 

The UMWA sought compensation from UP&L, on behalf of miners 

belonging to its Local Union 1769, District 22 ("Local Union"), pursuant 

to the third sentence of section 111 of the Mine Act. l/ The members of 

ll Section 111 provides in part as follows: 

[1) If a coal or other mine or area of such mine is 

closed by an order issued under section 103, section 

104, or section 107 all miners working during the 

shift when such an order was issued who are idled by 

such order shall be entitled, regardless of the 

1548 
the Local Union are employed by UP&L at its Deer Creek Mine located near 

Price, Utah. 

At 12:30 p.m., on November 3, 1986, an inspector of the Department 

of Labor's Mine Safety and Health Administration ("MSHA") issued an 

imminent danger withdrawal order at the Deer Creek Mine pursuant to 

section 107(a) of the Mine Act. 30 U.S.C. § 817(a). The citations 

alleged violations for insufficient rock dust (30 C.F.R. § 75.403) and 

an accumulation of .combustible materials (30 C.F.R. § 75.400). The 

inspector determined that the conditions described in the citations 

constituted an imminent danger. 2/ The affected area covered by the 

order included "the 3rd South belt entry from #20 crosscut including 

crosscuts and adjacent 1st Right entry from #34 to 3rd West." However, 

the entire mine was closed for the remainder of November 3, 1986, and 

result of any review of such order, to full 

compensation by the operator at their regular rates 

of pay for the period they are idled but for not 

more than the balance of their shift. [2] If such 

order is not terminated prior to the next working 

shift, all miners on that shift who are idled by 

such order shall be entitled to full compensation by 

the operator at their regular rates of pay for the 

period they are idled, but for not more than four 

hours of such shift. [3] If a coal or other mine or 

area of section 107 of this title for a failure of 

the operator to comply with any mandatory health or 

safety standards, all miners who are idled due to 

such order shall be fully compensated after all 

interested parties are given an opportunity for a 

public hearing, which shall be expedited in such 

ca~es and after such order is final, by the operator 

for lost time at their regular rates of pay for such 

time as the miners are idled by such closing, or for 

one week, whichever is lesser ..•• 

. 30 U.S.C. § 821. (sentence number added). 

~/ The imminent danger order states: 

The following conditions which collectively 

constitute an imminent danger were observed in 3rd 

South belt entry and 3rd South, 1st right entry: 

75.403-The rock dust which was applied in the 1st 

right entry was not applied in sufficient quantities 

to render the incombustible content to the required 

65 percent from number 34 crosscut inby to ... 3rd 

West (citation #2928498); 75.400-Combustible 

material in the form of float coal dust, loose coal, 

coal fines were observed in numerous locations in 

3rd South belt entry, adjacent 1st Right entry and 

connecting crosscuts. Also paper bags and trash at 

#20 crosscut, old wood scraps & timber. (citation 

number 2928499). 

1549 
for all shifts ·on Novem"_r 4, 5, 6, 7 and 10, 1986. 

The UMWA's complaint for compensation filed January 29, 1987, 

requested compensation for each miner who worked the 8:00 a.m. to 4:00 

p.m. shift on November 3, 1986, and for each miner scheduled to work the 

4:00 p.m. to midnight shift on November 3, 1986, the midnight to 8:00 

a.m., 8:00 a.m. to 4:00 p.m., and 4:00 p.m. to midnight shifts on 

November 4, 5, 6, 7, and 10, 1986. The complaint did not identify any 

individual miner claimants or the amount of compensation claimed. 

Rather, the UMWA stated in the complaint that it was incapable of 

listing every miner affected by the imminent danger order or the exact 

dollar amount claimed under section 111, and that a prompt effort would 

be made to obtain this information through discovery procedures. 

On February 12, 1987, the UMWA filed interrogatories addressed to 

UP&L, requesting: (1) the name of each UMWA member employed at the mine 

who was scheduled to work during the period covered by the complaint 

(Interrogatory No. 5); (2) the name of each individual who had reported 

in as unavailable to work and the purported reason for each individual's 

lack of availability for work (Interrogatory No. 6a); (3) the "hourly or 

daily rate of pay upon which each individual's most recent paycheck 

preceding November 3, 1986, was computed" (Interrogatory No. 6b); and 

(4) the name of each individual paid wages by UP&L for work performed 

from November 3, 1986 to November 10, 1986, the amount received by each 

individual, and the specific hours for which compensation was paid to 

each individual (Interrogatory No. 6c). 

On March 25, 1987, UP&L filed answers to the UMWA's interrogatories. In response to Interrogatory No. 5, UP&L provided a list, 

labeled "Exhibit A, 11 which identified all miners employed at the mine 

who worked or were scheduled to work during the period for which 

compensation was sought. In response to Interrogatory 6a, UP&L provided 

a list, labeled "Exhibit B," which identified miners who were 

unavailable for work during the period in question. In response to 

Interrogatories 6b and 6c, UP&L provided "Exhibit C, 11 which was UP&L's 

payroll record for the period from November 3 to 10, 1986. This list 

included all wages paid by UP&L to miners for work performed during the 

period. It also listed the dates worked by each miner, the number of 

hours worked on each date, and the applicable rate of pay for each 

miner. 

UMWA Legal Assistant Joyce A. Hanula reviewed these exhibits for 

the purpose of identifying the miner claimants included within the 

UMWA's complaint. In an affidavit, Hanula states that at least part of 

her copy of Exhibit A was not legible and that she informed Thomas 

Means, counsel for UP&L, of this. In her affidavit, Hanula further 

asserts that Means indicated that he would contact UP&L and attempt to 

get a clear copy, but that she never received another copy. Hanula also 

asserts that Means and John Scott, another counsel for UP&L, told her 

that "Exhibit C" was the best list to use since it had the miners' names 

and hourly rates of pay. Scott, however, states in his affidavit that 

he made no representations to the UMWA about Exhibit C other than to say 

that it could be used to show which miners had already been paid and the 

miners' rates of pay. Means states that he made no representations as 

1550 
to how the interrogatory answers should be evaluated by Hanula. The 

UMWA filed additional interrogatories on April 3, 1987, but did not 

request any further information concerning the identity of the miners 

scheduled to work during the period from November 3 to 10, 1986. 

On September 28, 1988, Hanula sent Scott a list of miners employed 

at the mine during November 1986 and their daily rates of pay. She 

stated that she could not determine from the information obtained 

through discovery the shift that each of these miners was scheduled to 

work and requested Scott to provide such information. She stated that 

"[o]nce I receive this information I will send you the Union's complete 

list of each individual entitled to compensation and the amount due." 

On September 29, 1988, Scott returned the list with shift designations 

beside each miner's name. 

A few days later Scott suggested to Hanula that UP&L might offer 

to settle the case by compensating the miners scheduled to work in the 

specific area described in the imminent danger order~ On October 6, 

1988, Hanula sent a letter to Robert Jennings, UMWA Health & Safety 

Representative in Utah, attaching a list of the names of miners she 

believed were entitled to compensation. She requested that the Local 

Union review the list for accuracy. The letter further discussed UP&L's 

possible offer of settlement. Jennings forwarded this information, 

including the list of miners, to George Baker, President of the Local 

Union. 

On November 9, 1988, Hanula sent another letter to Jennings 

attaching a revised list of miners, the miners' daily rate of pay, the 

number of days each miner was idled, and the amount of compensation that 

would be claimed by each miner in this compensation proceeding. The 

letter stated that this information was gathered from UP&L payroll 

records and that it was imperative that the Local Union contact her 

regarding any changes or additions. The letter concluded by stating 

that "[i]f I am not contacted by you or the Local by November 21, 1988, 

I will assume the list is accurate and forward a copy to. the company." 

On November 18, 1988, Scott proposed a settlement that would have 

compensated each idled miner one shift of pay, and would have resulted 

in a total payment of about $20,000. This offer was rejected by the 

Local Union. The UMWA proposed a counteroffer as follows: "That each 

miner listed on the enclosed attachment be paid the amount indicated 

under the column entitled 'amount due' prior to December 25, 1988." 

(emphasis in original.) This counteroffer is contained in a letter 

dated December 5, 1988, from Hanula to Scott. The letter states that 

each listed miner would be entitled to one-half the normal amount of pay 

and that the amount of this settlement would total $5,961.64 more than 

UP&L's offer. The attachment listed 148 miners who were entitled to 

compensation and 34 miners who were not entitled to compensation. At 

Scott's request, one name was subsequently deleted from the list of 

miners to be paid and other adjustments were made. 

By letter of agreement dated December 8, 1988, from Scott to 

Hanula, UP&L accepted the UMWA's counteroffer. This letter was signed 

by Scott for UP&L and approved and signed by Hanula for the UMWA. The 

1551 
settlement agreement states in numbered paragraph one '~.at "Exhibit A is 

a list of all claimants in this proceeding" and that "UP&L shall pay to 

each listed claimant the amount of compensation specified for that 

claimant." Additionally, the settlement agreement provides that "UP&L 

shall endeavor to make the payments by December 25, 1988, and in any 

event shall do so by December 31, 1988." Furthermore, the settlement 

agreement states that "[p]ayments to the claimants shall terminate any 

obligations of UP&L, and the UMWA shall, after receiving notice from 

UP&L that payments have been made, immediately file a motion with the 

Commission to withdraw its complaint." The list attached to the 

settlement agreement was identical to the list provided by Hanula with 

her December 5, 1988 letter, including the agreed-to modifications, and 

identified those persons who were entitled to receive payment, and the 

amount to be paid. The agreement also acknowledges that the agreement 

was entered into for purposes of settlement and that UP&L does not admit 

that any compensation was due under the Mine Act. 

UP&L filed the jointly signed settlement agreement with the judge 

on December 15, 1988. In an order also dated December 15, 1988, the 

judge requested the UMWA to move to withdraw its complaint for 

compensation when it received notice that the miners have been paid. 

On December 23, 1988, UP&L paid all the miners listed in Exhibit A 

of the settlement agreement the sums therein specified, and notified the 

UMWA that the payments had been completed. In late December 1988, 

however, Hanula received a call from Baker, president of the Local 

Union, informing her that there were four miners who were not on the 

list attached to the settlement agreement, but who were "entitled" to 

compensation. Scott, when informed of this matter, indicated a 

willingness to approve payment to these four miners, but no more. Baker 

also contacted Dave Lauriski, a UP&L manager, who took the same position 

as Scott. Later in the week, however, Baker determined that 10 more 

"eligible" miners has not been :focluded in the settlement and approached 

Lauriski, who then indicated that UP&L would not pay any of the 

14 miners. 

In a letter dated January 10, 1989, Hanula informed Scott that 14 

miners were not compensated and requested that these miners be paid. 

Hanula stated that these miners were not compensated because she had 

relied on UP~L s assertedly inaccurate payroll records to compile the 

list of claimants. Hanula further indicated that as soon as these 

14 miners were paid, the complaint would be withdrawn but that if the 

miners were not paid, the compensation complaint would proceed. In a 

letter to Hanula dated January 19, 1989, Scott stated that the 14 miners 

were not entitled to compensation under the terms of the settlement 

agreement and construed Hanula's request "as an attempt to set aside the 

settlement agreement and as a breach of terms of that agreement." 

UP&L then filed a motion to dismiss the complaint for compensation 

on February 23, 1989. UP&L argued that the settlement agreement was 

intended to resolve all issues and to terminate the proceeding in return 

for payment to the 147 miners listed in the attachment to the agreement, 

that UP&L had paid all of the miners on the list, and that under the 

terms of the agreement the UMWA was obligated to withdraw its complaint. 

1552 
The UMWA took the position that the parties had agreed that all 

idled miners would be compensated, but that when the agreement was 

reduced to writing, it did not include 15 miners entitled to payment 

under the settlement. J/ Alternatively, in the UMWA's view, the 

omission of the 15 miners was the result of a mutual mistake on the part 

of both parties. The UMWA argued that reformation of the settlement 

agreement was necessary to include the 15 individuals along with the 

appropriate amount to be paid to each, an~ requested a hearing. The 

UMWA also argued that if there were a di~missal of the proceeding, such 

dismissal should affect only the miners who had already received 

payments under the settlement agreement, leaving the remaining 15 miners 

free to pursue their section 111 claim or to negotiate a separate 

settlement. 

The judge denied UP&L's motion to dismiss and scheduled the case 

for hearing. UP&L filed a motion for reconsideration on May 25, 1989. 

Thereafter, the judge granted UP&L's motion to reconsider his earlier 

ruling and he dismissed the UMWA's complaint for compensation. 

The judge found that this proceeding was settled when Hanula 

signed the settlement agreement on December 8, 1988. 11 FMSHRC at 1653. 

After reviewing the record, the judge found that any mistake made in the 

determination of who should be included in the settlement of the 

compensation claim was a unilateral mistake on the part of the Local 

Union or the UMWA and was not a mutual mistake. 11 FMSHRC 1652. The 

judge found that the UMWA, not UP&L, prepared the list of eligible 

claimants, that the UMWA had asked the Local Union on two occasions to 

verify the accuracy of this list, and that the UMWA had submitted the 

list to UP&L when it made its counteroffer. 11 FMSHRC 1653. In 

addition, the judge held that there was no mutual mistake as to the 

number of miners entitled to compensation in this case because the 

parties were' consciously disputing that issue during their negotiations. 

11 FMSHRC 1652. The judge found that the parties were making 

concessions and compromising their positions with respect to whom, if 

anyone, should receive compensation and how much money each should 

receive. Id. 

Having found no mutual mistake, the judge held that the agreement 

could not be rescinded. He concluded that unilateral mistake could not 

form the basis for rescission, and that only mutual mistake would 

support a rescission. 11 FMSHRC at 1652. The judge also rejected the 

UMWA's request that he hold a hearing and order that the excluded miners 

be compensated. Id. He held that if a misrepresentation or mutual 

mistake had occurred, the remedy was to rescind the settlement 

agreement, not to reform it. 11 FMSHRC at 1653. Moreover, the judge 

held that UP&L had already performed its side of the agreement, and that 

to declare that the excluded miners be paid would impose a new and 

different settlement agreement on UP&L. Id. The judge further 

concluded that the miners of the Local Union could not keep the fruits 

J/ Another miner (unnamed on this record) subsequently came forth 

claiming that his name was improperly omitted from the settlement 

agreement. Hanula Affidavit at n.3. 

1553 
of the settlement agreement and at the same time seek additional 

compensation. Id. 

II. 

The Connnission's oversight of proposed settlements is, in general, 

connnitted to the Connnission's sound discretion. See, ~· Pontiki Coal 

Corp., 8 FMSHRC 668 (May 1986); Birchfield Mining Co., 11 FMSHRC 1428 

(August 1989). We conclude that the judge's finding that a mutual 

mistake was not established is supported by substantial evidence and 

that he did not err in concluding that the settlement agreement signed 

by UP&L and the UMWA on December 8, 1988, was valid and binding, and 

required dismissal of the UMWA's complaint. 

The UMWA maintains that the intent of the settlement agreement was 

to pay all idled miners 50 cents on the dollar and that if the list was 

incomplete it was a mutual mistake of both parties. The UMWA argues 

that "when the parties reduced their agreement to writing they did not 

include 15 of the miners who ... were entitled to a settlement." UMWA 

Br. 3. It attributes this omission to a mutual mistake in the 

compilation of the list of claimants. Id. The UMWA claims that UP&L 

attorneys directed the UMWA to consult UP&L's payroll·· records in 

Exhibit C to UP&L's answer to interrogatories, which it claims is 

inaccurate, as the best list of eligible miners. UP&L denies that it 

gave any such direction or that Exhibit C was inaccurate or misleading. 

The judge did not resolve this particular dispute, but it is not 

critical to proper resolution of this matter. 

Exhibits A and C were submitted by UP&L in response to specific 

interrogatories posed by the UMWA. In submitting the exhibits, UP&L was 

providing to the UMWA the specific information that the UMWA requested. 

Thus, in reviewing the nature of the responses, it is important to keep 

in mind the specific questions asked. In this context, it is clear that 

Exhibit A, attached to UP&L's response to interrogatory No. 5, would 

contain the names of miners not listed on Exhibit C because of the scope 

of the respective interrogatories. Exhibit A is a list of all miners 

scheduled to work during the shutdown, .while Exhibit C is UP&L's payroll 

record listing miners who received wages for work during the shutdown. 

Miners who were paid no wages were not listed on Exhibit C. Although, a 

portion of Exhibit A was apparently illegible, an answer to an 

interrogatory that is illegible in whole or in part is non-responsive. 

Thus, the UMWA could have demanded a complete response to its 

interrogatories, but it chose to proceed to settlement without ever 

clarifying the response to Interrogatory No. 5. 

Furthei:'more, the record does not support the UMWA's contention 

that_UP&L took joint responsibility for determining who might be 

eligible to be included in the settlement. UP&L responded to the UMWA's 

interrogatories. UP&L then relied on the list prepared by the UMWA and 

sought only to eliminate miners who had been previously paid. It was 

the UMWA that made the settlement offer that each miner on the now1554 
challenged list be paid one- ~lf of his normal wages. The Union did not 

ask UP&L to verify the completeness of the list. Instead, it 

appropriately asked its Local Union, twice, to verify the list's 

accuracy. The obligation was the UMWA's, as representative of the 

miners, to make sure that the list it was submitting for settlement 

included all the miners it sought compensation for in the settlement. 

The fact that a list of miners who were not entitled to compensation was 

also attached to the settlement agreement does not establish that UP&L 

intended to pay compensation to miners who were on neither list. Thus, 

our review of the record leads us to con~lude that substantial evidence 

supports the judge's conclusion that any mistake in preparing the list 

of eligible miners was not mutual but was unilateral on the part of the 

UMWA. 

Whether UP&L believed that the UMWA's list of miners to be 

compensated included all of the miners who would have been entitled to 

compensation had the UMWA prevailed on its theory on the merits is 

irrelevant. The UMWA agreed to withdraw its complaint if the miners on 

the list were paid. UP&L was entitled to rely on the list of miners to 

be paid prepared by the UMWA. The UMWA keyed its settlement offer to 

the list of miners it had prepared in conjunction with the Local Union. 

The evidence does not support UMWA's contention that UP&L agreed to pay 

all miners 50 cents on the dollar. Rather, the evidence shows that UP&L 

agreed solely to pay all miners set forth on the UMWA's list of miners 

50 cents on the dollar. The evidence further shows that UP&L abided by 

its part of the agreement and promptly discharged its duty by making the 

payments required thereunder. Only after the payments were made and 

disbursed to the 147 identified claimants did the UMWA belatedly demand 

payment for another 15 miners, and refuse to do what it had agreed to do 

upon payment to the listed miners, i.e., withdraw its complaint. 

A settlement agreement may be reopened only on the grounds of 

mutual mistake or fraud. A unilateral mistake is not sufficient to 

allow the mistaken party to limit or avoid the effect of an otherwise 

valid settlement agree.Illent. See, Brown v. County of Genesee, 872 F.2d 

169, 174-75 (6th Cir. 1989); M'id-South Towing Co. v. Har-Win, Inc., 733 

F.2d 386, 392 (5th Cir. 1984); Cheyenne-Arapaho Tribes of Indians v. 

United States, 671 F.2d 1305, 1311 (Ct. Cl. 1982); Callen v. 

Pennsylvania R.R., 332 U.S. 625, 630 (1948); Gaines v. Continental 

Mortgage & Investment Corp., 865 F.2d 375, 378 (D.C. Cir. 1989). Only a 

unilateral mistake by the UMWA in identifying the miners it believed 

were entitled to compensation occurred here. Fraud or mutual mistake is 

not present. Therefore, we agree with the judge that rescission or 

reformation of the settlement agreement is improper. 

Finally, we agree with the judge that a hearing was not required 

to resolve this issue. No genuine issue of material fact has been 

presented because the terms of the settlement are clear from the face of 

the document itself. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248-52 (1985). If the language used by the parties to an agreement is 

"plain, complete and unambiguous," the intention of the parties must be 

gathered solely from that language, no matter what the "actual or secret 

intention of the parties may have been." 17 AM. JUR. 2D Contracts § 245 

(1964). Because the language of the settlement agreement between UP&L 

1555 
and the UMWA is "plain, complete and unambiguous," a hearing to 

determine the parties• "actual or secret intention" was not necessary. 

III. 

Accordingly, we conclude that the judge did not err in dismissing 

the UMWA's complaint for compensation. 

L. Clair Nelson, Commissioner 

1556 
Chairman Ford, dissenting: 

This Commission has held that indiv~dual miner claimants under 

section 111 of the Act, 30 U.S.C.821, are deemed to be parties even if 

their miner's representative is actually prosecuting the compensation 

claim as a party on their behalf. Loe. Union No. 1881, Dist. 17, UMWA 

v. Westmoreland Coal Co. and Secretary of Labor, 9 FMSHRC 1195, 1196 

(July 1987). Amidst the charges and countercharges exchanged in the 

affidavits below, there appear to be 15 miners who have as cognizable a 

claim against UP&L as the 147 miners who were paid as part of the 

disputed settlement agreement. 

Even if one were to assume that section 111 allows the 

"compromising" of the claims of the 15 miners in exchange for the 

benefits conferred by settlement upon their 147 fellow workers, the 

record in this case does not support such a result. 

The December 8, 1988 letter from John T. Scott III, counsel for 

UP&L, to Joyce Hanula, representative for the UMWA, sets forth the terms 

of the settlement agreement ultimately approved by the judge. Paragraph 

No. 1 of that agreement states: "Attached as ExhibitA is a list of all 

claimants in this proceeding. UP&L shall pay to each listed claimant 

the amount of compensation specified for that claimant." UMWA Ex. H, 

attached to Hanula Affidavit. "Exhibit A, 11 however, consists of more 

than just a list of all claimants; it also includes on pp. 8-9 a list of 

miners identified as "Members of Local Union 1769 Who Are Not Entitled 

to Compensat.ion. 11 The ineluctible conclusion is that the attachment of 

both lists to the agreement signified that ho.th the UMWA and UP&L meant 

to account for all miners at the Deer Creek Mine - those who were 

entitled to some compensation through the settlement and those who were, 

for various reasons, not so entitled. lf 

Since the names of the 15 miners do not appear on either list I 

find more than sufficient grounds for establishing the mutual mistake 

argued by the UMWA. To be sure, the responsibility for compiling a true 

and complete list of claimants rested with the UMWA 1 s representative and 

had her inquiries to the local union for verification of the claimants• 

list been carefully considered and answered, this matter might not be 

before us today. By attaching the list of non-claimants to the 

agreement, however, counsel for UP&L in effect endorsed the UMWA 1 s error 

lf For some unexplained reason the list of those not entitled to 

compensation was not submitted to the judge with the rest of the 

settlement agreement. The list was, however, submitted for the record 

(as part of the December 8, 1988 letter) on UP&L 1 s subsequent motion to 

dismiss the proceeding. Hanula Affidavit, supra. In his order of 

dismissal, however, the judge refers only to the seven page list of 

claimants. 11 FMSHRC 1650. 

1557 
so [.__, to provide grounds for finding a mutual mistake. 

The UMWA urges upon the Commission the "equitable solution" of 

reforming the settlement agreement to include the 15 miners, or in the 

alternative dismissing the proceeding involving the 147 miners as 

settled and allowing a new complaint to proceed with respect to the 15 

miners excluded from the settlement agreement. Serious impediments 

stand in the way of both proposals. With respect to reformation of the 

settlement agreement, such an action would amount to holding UP&L liable 

for an estimated $4200.00 in additional compensation even though the 

operator insists it is not liable for any compensation in the first 

place and would, in the absence of the settlement agreement at issue, 

reserve its option to pursue the entire matter on the merits. As for 

dismissing the proceeding regarding the 147 miners already paid and 

allowing a new claim on behalf of the 15 miners to proceed, such an 

action would amount to reforming the settlement agreement inasmuch as 

the parties, in particular UP&L, had assumed the settlement to cover all 

ostensible claims arising from the withdrawal order issued at the Deer 

Creek mine. Either option would, as the judge indicated, impose "an 

entirely new and different settlement agreement on UP&L." 11 FMSHRC 

1653. 

Although the judge found no mutual mistake, I agree with his 

conclusion that if one had occurred the appropriate remedy would be 

rescission rather than reformation of the agreement. Shear v. National 

Rifle Association, 606 F.2d 1251, 1260 (D.C. Cir. 1979). I further note 

that both parties have offered rescission as an alternative to their 

principally recommended dispositions of this matter. Brief of UP&L on 

Review, p. 22; UMWA Reply Brief, below, at pp. 6-7. 

In view of my foregoing conclusion that a mutual mistake was made 

in the course of agreeing to the disputed settlement, I see no reason 

for a hearing on that issue. I would therefore rescind the settlement 

agreement, return the parties to the status quo ante, and remand the 

matter to the judge for whatever additional proceedings may be 

appropriate. 

1558 
Connnissioner Doyle, dissenting: 

The majority, after setting forth the opposing views advanced to 

the administrative law judge by affidavits of UP&L and the. UMWA as to 

the intent of the settlement agreement, concludes that the judge did not 

err when he found that the settlement argument was valid and binding and 

required dismissal of the UMWA's complaint. I disagree. 

The UMWA asserts that the settlement was intended to compensate 

all miners scheduled to work during the relevant period, at the rate of 

fifty cents on the dollar. UP&L asserts that the intent was to 

compensate only those miners whose names were on the list attached to 

the settlement agreement. Thus, we have a dispute as to an issue of 

material fact. Case law is clear that, in such instances, the party 

challenging the settlement agreement is entitled to a hearing on that 

issue. 11 [W]hen opposition to enforcement of the settlement is based not 

on the merits of the claim but on a challenge to the validity of the 

agreement itself, the parties must be allowed an evidentiary hearing on 

disputed issues of the validity and scope of the agreement." Mid-South 

Towing Co. v. Har-Win, Inc., 733 F.2d 386, 390 (5th Cir. 1984). In that 

case, the court found that the judge erred when he made a factual 

finding without holding an evidentiary hearing. Id. at 391. 

In Auteria v. Robinson, 419 F.2d 1197 (D.C. Cir. 1969), the court 

found summary proceedings ill-suited to the resolution of factual issues 

related to the formation of the contract (a settlement agreement). 

Id. at 1200. There, as here, the judge appeared to rely on the 

statements of the attorney representing the party seeking to uphold the 

settlement agreement, which required rejection of the countervailing 

version set forth in the appellants' affidavit. Because appellants 

raised substantial is~ues of fact as to whether the parties were in 

mutual accord on the terms of the settlement, and because there was no 

opportunity for cross-examination or for credibility determinations by 

the judge, the court determined that appellants were entitled to an 

evidentiary hearing on the disputed facts. Id. at 1201-1203. Here, the 

judge made findings of fact in support of his conclusion that the case 

was settled, in its entirety, at the time the UMWA signed the settlement 

agreement. 11 FMSHRC 1653. However, his conclusions are both 

contradictory and unsupported by substantial evidence of record. 

The judge found that "[t]he Union proposed instead that everyone 

receive $.50 on the dollar" and that 11 [t]his was agreed to by UP&L. 11 Id. 

at 1651. (emphasis added.) He then determined that "[u]nfortunately, 

when the parties reduced their agreement to writing they did not include 

14 (or 15) of the miners ••• entitled to settlement." Id. at 1651-52. 

Thus, there was an unqualified finding that both parties intended to 

compensate all miners and that the settlement agreement did not reflect 

what both parties intended to be the settlement. The judge then found, 

however, that "[i]n this case there was no mutual mistake. If a mistake 

occurred it was unilateral on the part of Local 1769 or the UMWA. 11 Id. 

at 1652. The judge does not explain on what he based this conclusion 

but it should be noted that, while UP&L's attorneys argue this position, 

1559 
neither the affidavit of Mr. ~- ~tt nor that of Mr. Means asserts that it 

was UP&L's intention to compensate only 147 miners rather than all 

miners working or scheduled to work during the period in issue. There 

being no other evidence in this record aside from the disputed 

settlement agreement, except the affidavit of Ms. Hanula to the 

contrary, I must conclude that there is no evidence in this record to 

support the judge's finding that any mistake was unilateral. Instead, 

by virtue of the judge's finding that the parties intended to compensate 

all miners, it is ciear that the settlement agreement does not reflect 

the parties actual agreement. 

The judge also erred when he found that "there can be no mutual 

mistake as to the number of miners entitled to compensation because on 

this issue the parties compromised." 11 FMSHRC 1652. In support of 

this finding, he cited Corbin on Contracts, which states, in relevant 

part: 

[W)here the parties are consciously disputing an 

issue and agree upon a compromise in order to settle 

it, they are making no mistake as to the matter at 

issue and thus settled. There must be a mistake as 

to matters that were not at issue and were not 

compromised in order that the settlement may be 

avoidable on the grounds of mistake. 

6 Corbin, Contracts § 1292 (1963). 

There is no evidence in the affidavits before the judge that the parties 

were consciously disputing whether 162 or 147 or any lesser number of 

miners were entitled to compensation and that the parties had agreed to 

compromise on 147. Rather, the conscious disputes were over whether the 

operator was required to compensate any miners, whether only those 

miners assigned to the section described in the order were entitled to 

compensation, whether all miners in the entire mine were entitled to 

compensation, and the amount of compen~ation, if any, due each miner. 

If the UMWA had agreed to settle for compensation for only those miners 

on the idled section, the claim would be considered compromised. When 

the UMWA agreed to settle for fifty cents on the dollar rather than full 

compensation, that was a compromise. At no time (at least as evidenced 

by this record) did the UMWA contemplate settling on behalf of less than 

all of the miners scheduled to work during the period in issue. 

Therefore, there was no "compromise" on this issue and the settlement 

may be voidable on the grounds of mistake. Corbin, supra. 

I must disagree with the majority that the inaccuracies in 

Exhibit C are not critical to the resolution of this case. Slip. op at 

7. I believe they are in error when they state that "it is clear that 

Exhibit A .•. would contain the names of miners not listed in Exhibit C 

because of the scope of the respective interrogatories." Id. In fact, 

the scope of Interrogatories No. 5 and No. 6 are identical-.-

Interrogatory No. 5 applied to each UMWA member employed at Deer Creek 

and scheduled to work on the dates in issue. All of the names contained 

on Exhibit A should have been included on Exhibit C because 

Interrogatory No. 6 states as follows: 

1560 
11 6. ·With respect to each of the individuals 

identified in Interrogatory No. 5, please: 

* * 

b. State in dollars and cents the hourly or 

daily rate of pay upon which each individual's most 

recent paycheck preceding November 3, 1986, was 

computed;" 

Complainants' First Set of Interrogatories at 2. (emphasis added.) 

In response to Interrogatory No. 6(b), UP&L answered "See Exhibit C." 

Answers to Interrogatories at 4. Thus, contrary to the majority's 

assertion, UP&L, in effect, represented that all of the names contained 

on Exhibit A were also contained on Exhibit C. ll 

Irrespective of whether an accord was reached as to whether all 

miners were to be compensated, it is clear from the UMWA's Complaint for 

Compensation that a claim was being made on behalf of each and every 

miner who worked or was scheduled to work during the statutory period. 

Complaint at 2. The individual miners are the real parties in interest 

in this action, not the UMWA. The case was settled as to only 147 of 

the 162 miners who appear to fall within the categories set forth in the 

complaints. Because the other fifteen miners were not part of the 

settlement agreement and received no consideration as a result of it, 

the settlement agreement is void as to them. Therefore, I believe the 

judge erred in dismissing their action. 

Even if one were to assume, for the sake of argument, that the 

mistake was not mutual but rather that UP&L was aware of the fifteen 

additional miners and intended to exclude them from the settlement, they 

would be just that, excluded from the settlement and not bound by it. 

Thus, the result is the same, i.e., their claims should not have been 

dismissed. 

For the reasons set forth above, I would reverse the judge and 

remand f.or an evidentiary hearing and a reanalysis of the law. 

JSYce e~tl~ A. Doyle 

Conunissioner 

lf The affidavits of UP&L's attorneys assert basically that they made 

no representations as to the lists provided in response to the 

Interrogatories. However, the Conunission 1 s Rule 57 requires that 

interrogatories be answered under oath, a requirement with which UP&L's 

attorneys failed to comply. 

1561 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 28, 1990 

Docket No. PENN 88-227 

PENNSYLVANIA ELECTRIC COMPANY 

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

DECISION 

BY THE COMA:ISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seg. (1988)("Mine Act"), and 

is before us for a second time on review. The Secretary of Labor 

alleges that Pennsylvania Electric Company ("Penelec") twice violated 

30 C.F.R. § 77.400(c) by failing to guard two head conveyor drives at 

its Homer City Electric Generating Station ("Generating Station" or · 

"Station"). ll 

The primary question before the Commission in our previous review 

was whether the cited working conditions were 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 

Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seg. 

(1988) ("OSHAct"), as argued by Penelec. A majority of the Commission 

ll 30 C.F.R. § 77.400(c) states: 

Guards at conveyor-drive, conveyor-head, and 

conveyor-tail pulleys shall extend a distance 

sufficient to prevent a person from reaching behind 

the guard and becoming caught between the belt and 

the pulley. 

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

end. The "head drive" is the device by which mechanical power is 

transmitted to the head pulley of a belt conveyor. See Bureau of Mines, 

U.S. Department of the Interior, A Dictionary of Mining, Mineral, and 

Related Terms 532, 533 (1968). 

1562 
held that the Secretary properly could decide to make mine safety and 

health standards applicable to the cited area, but remanded the case to 

Commission Administrative Law Judge Gary Melick for further proceedings 

because the record did not clearly indicate whether the Secretary had 

properly asserted Mine Act jurisdiction. Pennsylvania Electric Co., 

11 FMSHRC 1875, 1882 (October 1989)("Penelec"). The Commission stated: 

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 .•. we find 

it appropriate to order further proceedings. 

11 FMSHRC at 1885. On remand the judge held that he could not find "any 

legally cognizable Secretarial impropriety in exercising her authority 

to regulate [the area in question] within the framework of the Act. 11 

12 FMSHRC 123, 124 (January 1990)(ALJ). 

I. 

Chairman Ford and Commissioner Doyle would reverse the judge's 

decision and Commissioners Backley and Nelson would affirm. ~/ As a 

consequence, the Commission is evenly split, a first-time occurrence at 

the Commission. We conclude that the effect of the split decision is to 

allow the judge's decision on remand to stand as if affirmed. 

Section 113(c) of the Mine Act authorizes the Commission to 

delegate to "any group of three or more members any or all of the powers 

of the Commission." 30 U.S.C. § 823(c). The Commission has frequently 

designated itself as a panel of three members to exercise the powers of 

the Commission. The Mine Act does not expressly state that disposition 

of a case (whether affirmance or reversal) shall occur through the 

majority vote of the Commission or a designated group (panel) of its 

members. The legislative history provides some indication that case 

disposition is to be by the traditional judicial process of simple 

majority vote: 

The Commission is authoriz.ed to act in panels of 

three members, with a majority of each panel 

sufficient to decide a matter.. This organization is 

patterned after that of the National Labor Relations 

Board and is intended to give the Commission a more 

flexible administrative organization in order to 

facilitate the efficient processing of cases before 

the Commission. 

S. Rep. No. 181, 95th Cong., 1st Sess. 47-48 (1977), reprinted in Senate 

~/ Commissioner Lastowka did not participate in the consideration or 

disposition of this second review proceeding in this case. 

1563 
Subcommittee on Labor, Conunitr~e on Human Resources, 95th Cong. 2nd 

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

1977, at 635-36 (1978) ("Legis. Hist.")(emphasis added). However, 

neither the Mine Act nor its legislative history addresses the 

additional subject of the effect of an evenly divided Commission panel. 

In the absence of a definitive indication in the statute and its 

history, it is instructive to turn to general principles of federal 

adjudication. The United States Supreme Court affirms the decision of 

the lower court when the justices are evenly divided. In an early case 

where the justices were divided, Chief Justice Marshall, writing for the 

Court, held that "the principles of law which have been argued, cannot 

be settled; but the judgment is affirmed, the court being divided in 

opinion upon it. 11 Etting v. Bank of the United States, 11 Wheat. 59, 78 

(1826). In practice, appellate courts allow the lower court decision to 

stand when there is an evenly split decision. In a later case, the 

Court explained: 

If the judges are divided, the reversal cannot be 

had, for no order can be made. The judgment of the 

court below, therefore, stands in full force. 

Durant v. Essex Co., 74 U.S. 107, 112 (1868). 

In a somewhat analogous context, courts of appeal have held that 

evenly split decisions of the Occupational Safety and Health Review 

Conunission ("OSHRC") are reviewable. George Hyman Construction Co. v. 

OSHRC, 582 F.2d 834 (4th Cir. 1978); Marshall v. Sun Petroleum Products 

Co., 622 F.2d 1176 (3rd Cir. 1980). These courts determined that 

because an evenly split OSHRC decision is analogous to an evenly split 

court decision, the administrative law judge's decision should be 

allowed to stand. Id. The courts reasoned that the party losing before 

the administrative law judge is placed in a "jurisdictional limbo" 

unless the OSHRC order is appealable to the Court of Appeals. Hyman 

Construction Co., 582 F.2d at 837. In each case, the ·court determined 

that the OSHRC decision was a final order for purposes of judicial 

review and therefore subject to examination "by the next link in the 

hierarchal chain of review." Marshall, supra, 622 F.2d at 1180. 

Several courts of appeals, however, have held the OSHRC errs when 

it issues a decision with an evenly split vote because "no official 

action can be taken by the Commission without the affirmative vote of at 

least two [of its three] members." Shaw Construction, Inc. v. OSHRC, 

534 F.2d 1183, 1185 (5th Cir. 1976). See also, Cox Brothers, Inc. v. 

Secretary of Labor, 574 F.2d 465 (9th Cir. 1978). The court in each 

case determined that the OSHRC's decision was not a reviewable order 

within the jurisdiction of the Court. The holding in each of these 

cases, however, was based in large part on language in the OSHAct that 

is not contained in the Mine Act. 11 

11 Section 12(e) of the OSHAct provides that "official action can be 

taken only on the affirmative vote of at least two members." 29 U.S.C. 

§ 661(f). 

1564 
A review .of the Mine Act and its legislative history reveals no 

intent to limit judicial review of Commission decisions. The purpose of 

Congress in authorizing the Commission to act in panels of three or more 

members was to provide "a more flexible administrative organization in 

order to facilitate the efficient processing of cases." Legis. Hist. at 

636. Adopting the traditional federal judicial model for handling 

evenly split decisions of this adjudicatory Commission will advance that 

Congressional objective. Accordingly, all C,ommissioners participating 

in this matter hold that this decision is a final order of the 

Commission subject to judicial review under section 106 of the Mine Act, 

30 U.S.C. § 816. Because a majority of the Commission did not vote to 

reverse the decision of the administrative law judge, his decision 

stands in full force, as if affirmed. Set forth in section III of this 

decision, infra, are the Commissioners' separate opinions with respect 

to the merits of this case. 

II. 

Penelec also has raised two procedural matters on review. First, 

Penelec argues that Judge Melick deprived it of the opportunity to 

resolve ambiguities in the record by denying its motion to consolidate 

this. case with other cases pending before the judge, which also raise 

jurisdictional issues concerning the Generating Station. The 

Commission's procedural rule provides that an administrative law judge 

"may ... order the consolidation of proceedings." 29 C.F.R. § 2700.12. 

A determination to consolidate lies in the sound discretion of the trial 

judge. In this instance, the judge decided not to consolidate the 

present case, involving two citations that had already been tried, 

decided and appealed to the Commission, with challenges to 23 

subsequently issued citations that had not yet been tried. Instead, the 

judge stayed the hearing on the subsequently issued citations. Given 

these facts, all Commissioners participating hold that Judge Melick did 

not abuse his discretion in denying Penelec 1 s motion to consolidate. 

Penelec also argues that Judge Melick erred in denying its motion 

to reopen discovery. Penelec maintains that it was unable to present 

adequate evidence at the hearing on remand to establish a basis for 

determining whether the Secretary exercised her jurisdiction 

appropriately. It contends that the judge denied its motion without 

good cause. See 29 C.F.R. § 2700.SS(a). It states that additional 

discovery was necessary because "[o]nly with the Commission's October 

1989 decision was Penelec on notice that the Secretary might 

legitimately assert jurisdiction" at the Generating Station. Penelec 

Br. at 32. 

We hold that Judge Melick did not abuse his discretion in denying 

Penelec 1 s request to take discovery out of time. Penelec waited until 

December 1, 1989 to request discovery with respect to the issues 

remanded to the judge on October 10, 1989. Penelec has set forth no 

explanation why it did not seek to initiate this discovery earlier. 

Penelec's delay is particularly puzzling because the judge issued the 

1565 
notice of hearing on October 20, 1989 and a prehearing order on November 

8, 1989. Instead of seeking discovery within a reasonable time after 

the case was remanded, it waited until 12 days before the scheduled 

hearing to request discovery. We agree with the judge that Penelec's 

request for discovery was untimely and that it failed to show good cause 

for extending the time for initiating discovery. Under these facts, all 

Commissioners participating hold that the judge did not abuse his 

discretion. 

III. 

The opinions of the Commissioners on the merits of this case 

follow. 

Commissioners Backley and Nelson, in favor of affirming the 

decision of the administrative law judge: 

A majority of this Commission previously determined that "MSHA 

possesses statutory authority to regulate working conditions associated 

with Penelec's preparation of coal, and that therefore the Secretary of 

Labor coul~ decide to make mine safety standards applicable" to the SA & 

SB head drives at Penelec 1 s Generating Station. Penelec, 11 FMSHRC at 

1882. This case was remanded to the administrative law judge because 

the Commission was "unable to determine with any degree of assurance 

from the murky record" whether the Secretary had decided to make mine 

safety standards or OSHA standards applicable to the head drives. Id. 

The record contained no evidence of enforcement activity by OSHA or MSHA 

prior to the issuance of the subject citations and no evidence that the 

Secretary adhered to the procedures set forth in the MSHA-OSHA 

Interagency Agreement ("Interagency Agreement"), 44 Fed. Reg. 22827 

(1979), for resolution of jurisdictional conflicts between the two 

agencies. Penelec, 11 FMSHRC at 1883. The Commission concluded that 11 [b]ecause of the pervasive ambiguity of 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 1 s 

Generating Station," the case should be remanded for the taking of 

further evidence. Penelec, 11 FMSHRC at 188S. 

At the hearing on remand, Inspector John Kopsic, the MSHA 

inspector who issued the head drive guarding citations involved in this 

case, testified that he regularly inspected the SA and SB conveyor belts 

prior to the issuance of the subject citations. Remand Tr. 118-19, 122, 

124-2S, 132. He further testified that he has been regularly inspecting 

this area since 1982 and that he has issued citations for guarding 

violations at the SA and SB head drives. Id. Based on this "newly 

developed undisputed evidence," the judge found that "MSHA had indeed 

previol!sly inspected, and issued citations for violations at, the 

subject SA and SB head drives." 12 FMSHRC at 12S n.1. As Penelec 

presented no evidence to the contrary, the judge's finding in this 

regard is supported by substantial evidence. 

1566 
Furthermo-re, MSHA had previously issued citations at these head 

drives to Rochester and Pittsburgh Coal Company ("R&P") or its 

subsidiary (Iselin Preparation Company), the operator of the coal 

cleaning plant at the Generating Station, and, according to Inspector 

Kopsic, Penelec was aware of these previous citations because its own 

employees abated the violations. Remand Tr. 127, 128-32, lSO. The 

inspector further testified that on one occasion he had observed that a 

Penelec supervisor was present during the abatement of a head drive 

violation. Remand Tr. 128. Inspector Kopsic stated that he issued the 

present guarding citations to Penelec becaus"e the safety director of 

R&P's coal cleaning plant informed him that Penelec employees had 

removed the guards from the head drives and that it was Penelec 1 s 

responsibility to maintain that area. Remand Tr. 1S3. Based on this 

evidence, the judge concluded that Penelec was aware of the previous 

inspections and violations at the head drives. 12 FMSHRC at 12S n.1. 

Again, Penelec did not present any evidence on this issue, and 

substantial evidence supports the judge's finding. 

Based on the evidence presented at the remand hearing, it is 

apparent that the Secretary has consistently applied mine safety and 

health standards to the SA and SB head drives. No evidence was 

presented that the Secretary has applied occupational safety and health 

standards to these head drives. Consequently, we conclude that the 

Secretary has demonstrated that she has properly exercised her authority 

to regulate the working conditions at the cited area under the Mine Act. 

In addition, the record makes clear that Penelec had actual or 

constructive knowledge that citations had been issued in the past for 

violations of mine safety and health standards at the SA and SB head 

drives. Its employees participated in the abatement of these previous 

violations. The fact that past citations were issued to R&P is not 

controlling. An owner and its independent contractor are "operators" 

under section 3(d) of the Mine Act, 30 U.S.C. § 802(d), and either, in 

appropriate circumstances, may be held liable for violations of safety 

standards regardless of fault. See ~· International Union, UMWA v. 

FMSHRC, 840 F.2d 77 (D.C. Cir. 1988). Thus, the fact that MSHA cited 

R&P, an independent contractor, rather than Penelec, the owrier, for past 

violations in the disputed area does not, by itself, negate MSHA 1 s 

enforcement history or Penelec 1 s knowledge of it. 

The Interagency Agreement was developed, in part, to "provide a 

procedure for determining general jurisdictional questions." 44 Fed. 

Reg. 22827. In the Commission's previous decision, the majority 

determined that the first clear assertion of MSHA jurisdiction in the 

record was contained in an April 12, 1988 letter from the 'MSHA District 

Manager to Penelec stating that MSHA was expanding its inspection 

authority at the Generating Station to include all areas directly 

involved in the coal preparation process. Penelec, 11 FMSHRC at 1883. 

The record revealed that a copy of this letter was sent to the OSHA Area 

Office. On the basis of this evidence, the Commission questioned 

whether the Secretary had properly invoked her jurisdiction through the 

procedures set forth in the Interagency Agreement. 

The evidence produced by the Secretary on remand makes clear that 

the particular area in question has been inspected by MSHA since at 

1567 
least 1982 and no evidence was produc~ to show that OSHA has ever 

inspected it. As a consequence, the Interagency Agreement has n~ 

bearing on this case because no question or conflict between OSHA and 

MSHA existed. We now know that the Secretary has consistently inspected 

the head drives under the Mine Act rather than the OSHAct. As discussed 

above, Penelec had notice of this fact. 

Penelec and Edison Electric Institute ("Edison"), amicus curiae, 

also question at this stage MSHA's jurisdiction to inspect the head 

drives. Because the Commission previously determined that such 

jurisdiction exists, we need not respond to these arguments. 4/ We 

adopt the holding of the majority in our previous decision th~t MSHA has 

jurisdiction over the SA & SB head drives. 

Accordingly we would affirm the decision of the administrative law 

judge. 

~~ 'Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

~/ We note that Penelec's and Edison's additional argument that MSHA 

cannot preempt OSHA's jurisdiction without first promulgating rules and 

regulations addressing the working conditions in electric generating 

facilities was not previously presented to the judge. Except for good 

cause shown, no assignment of error by a party may rely on any question 

of fact or law upon which the judge has not been afforded the 

opportunity to pass. 30 U.S.C. § 823(d)(2)(A)(iii); Union Oil Co., 

11 FMSHRC 289, 297 (March 1989). Penelec has not shown any cause why 

this argument was not made to the judge. In addition, we note that MSHA 

does have broad safety standards in place governing belts and head 

drives. Thus, MSHA's standards address the working conditions of the 

cited area. MSHA is not necessarily reguired to develop more 

particularized standards that apply exclusively to those portions of 

'electric generating facilities that are subject to its jurisdiction. 

1568 
Chairman Ford, in favor of reversing the decision of the administrative 

law judge: 

As a member of the majority in the Commission's prior 

consideration of this case, 11 FMSHRC 1875, I ,concurred in the decision 

to vacate Judge Melick's initial decision and to remand the matter for 

the taking of additional evidence on the jurisdictional issues giving 

rise to this dispute. I further concurred in the view that the broadly 

drawn definitions of "coal or other mine" and "coal mine" in section 

3(h) of the Mine Act, 30 U.S.C. § 802(h), did implicate certain 

facilities at Penelec's Homer City Steam Electric Generating Station, 

such that the Secretary could assign occupational safety and health 

enforcement regarding those facilities to the Mine Safety and Health 

Administration. 

The prtncipal question that led me to join my colleagues in the 

majority was whether the Secretary had indeed assigned such enforcement 

authority to MSHA. Flowing from that principal question was my concern 

as to whether the assignment, if executed, was executed with sufficient 

clarity as to have given Penelec adequate notice that its coal handling 

activities at the Generating Station would be subject to Mine Act 

authority before the enforcement actions at issue were taken. The 

majority had concluded that such questions could not be answered on the 

basis of the "murky record" before us. 11 FMSHRC 1882. Regrettably, 

the record developed on remand and now before us on review is in many 

respects even murkier. 

As supplemented by the remand proceeding, the record still 

exhibits inconsi~tencies in enforcement policies and practices (some of 

which the judge characterized as "bizarre"); unanswered questions as to 

whether there is an overall Departmental plan for accommodating 

jurisdictional tensions between the Mine Act and the Occupational Safety 

and Health Act of 1970, 29 U.S.C. § 651 et seq., (1982) at coal-fired 

electric power plants; and a patchwork scheme of inspections that does 

not adequately address the prior majority's concerns respecting the 

"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." 11 FMSHRC 1885. 

For those reasons I must part company with my two colleagues who 

find that "the Secretary through MSHA has properly exercised her 

authority to regulate the cited working conditions at Penelec's 

Generating Station." Id. It has not been demonstrated that the 

agencies involved, let alone Penelec, had a clear understanding of the 

jurisdictional lines of demarcation at the time the citations were 

issued. 

The record, both initially and on remand., establishes the 

following pertinent chronology: 

1569 
July 5, 1977 - District Manager Huntley by letter 

informs William Mason, OSHA operations officer, that 

contrary to OSHA's position that the Iselin 

Preparation Plant is under OSHA's jurisdiction, the 

Deputy Associate Solicitor for Mine Health and 

Safety (Department of the Interior) has determined 

that the Iselin Preparation Plant is under the 

Mining Enforcement and Safety Administration's 

(MESA's) jurisdiction. (Gov. Ex. 1). 

July 28, 1977 - Coal Mine Inspection Supervisor 

Robert G. Nelson by Memorandum delineates those 

locations at the Generating Station where Iselin 

Preparation Co. "has or will have control." (Gov. 

Ex. 2). They include a "blending bin" subsequently 

identified at the remand hearing as being the same 

as bin No. 2 by Inspector Kopsik (Tr. p. 133). No 

specific reference, however, is made to the SA and 

SB conveyors or to their head drives. 

August 2S, 1977 - Penelec and MESA meet and reach 

an oral agreement as to the jurisdictional lines 

between MESA and OSHA at the Generating Station. 

September 6, 1977 - R.C. Herman, Penelec 

representative at the August 25 meeting, 

memorializes his understanding of the August 25, 

1977 agreement that states in part: "At #2 Bin MESA 

will have jurisdiction 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." (Joint Ex. 1). (No record of MESA's 

understanding of the August 2S, 1977 agreement has 

been produced in this proceeding.) 

April 17, 1979 - The MSHA/OSHA Interagency 

Agreement is published whereby procedures are 

established for resolving disputes over jurisdiction 

between the two agencies. 42 F.R. 22827, 22828. 

November 29, 198S - In a Motion to Dismiss filed 

with the Commission in Utility Fuels, Inc., Docket 

No. CENT 8S-89, Counsel for the Secretary states: 

"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 

1570 
overall power plant process is more feasibly 

regulated by OSHA." 

January 7, 1988 - MSHA Inspector Kopsic issues the 

two citations on review alleging violations of 

30 C.F.R. § 77.400(c) with regard to guarding at the 

SA and SB head drives at the Generating Station. 

The citations are issued to Penelec rather than to 

the Iselin Preparation Plant as had been the custom 

up to that date. 

February 2S, 1988 - Mr. Richard E. Orris, manager 

of safety for Penelec, writes to District Manager 

Huntley asking for Huntley's position with respect 

to MSHA's jurisdiction over facilities at the 

Generating Station including the SA and 5B 

conveyors, their head pulleys and their drive units. 

April 12, 1988 - District Manager Huntley responds 

by asserting that the 1977 Mine Act "extends to all 

areas which contribute to or play a part in the work 

of preparing coal." (Joint Ex. 3). Attached to the 

letter is a list of facilities that MSHA "is 

currently not inspecting but which MSHA has 

jurisdiction over and will be inspecting" and 

includes "[b]in No. 2 including motors, plug shoot 

probe, control buttons, conveyors SA and SB and all 

floors." 

April 14, 1988 - District Manager Huntley forwards 

a copy of the April 12, 1988 letter to Mr. Gary 

Griess, Area Director of OSHA. (Gov. Ex. 3). (This 

letter was apparently lost or misdirected within 

OSHA since a duplicate was sent after the 

Commission's October 10, 1988 decision and remand 

and before the judge's December 13, 1989 hearing on 

remand. Tr. 1S7-160). 

December 30, 1988 - Judge Melick issues his 

initial decision finding Mine Act jurisdiction over 

the SA and SB head drives. 

January 31, 1989 - OSHA issues proposed rule 

29 C.F.R. Part 1910 relating to Electric Power 

Generation, Transmission, and Distribution; 

Electrical Protective Equipment, wherein the agency 

states the rule covers work practices at "[f]uel and 

ash handling and processing installations such as 

coal conveyors and crushers." S.4 F.R. 4974, S009. 

June 28, 1989 - At oral argument in a companion 

case, Westwood Energy Properties v. Secretary of 

Labor, MSHA, 11 FMSHRC 2408 (December 1989), counsel 

for the Secretary indicates that other coal 

1571 
consuming industries such as steel mills and alumina 

plants may be subject to Mine Act jurisdiction if 

they engage in coal processing activities. (Oral 

Argument Tr. pp. 22-23, 2S-26). 

October 10, 1989 - The Commission issues its 

decision and remand in this case. 

December 13, 1989 - Judge issues his decision on 

remand. 

If there is a consistent or even discernible pattern of 

enforcement in the above chronology, I fail to see it. Nor does 

Inspector Kopsik's testimony on remand serve to resolve or reconcile the 

discrepancies set forth above. While he testified to having inspected 

the SA and SB conveyors including the head drives and to having issued 

citations thereon prior to January 7, 1988, his testimony is equivocal 

as to the locations of the violations. Tr. 123. He had no recollection 

of the dates when the citations were issued and it appears that the 

citations, when issued, were issued because Iselin employees were 

exposed to the alleged hazards cited. Tr. lSS. Unfortunately, none of 

the citations Inspector Kopsik testified to was introduced into evidence 

so as to document his generalized testimony with respect to the scope of 

his pre-1988 inspections at the Generating Station. In any event, 

regardless of what Inspector Kopsik and his immediate supervisors 

considered to be the scope of Mine Act jurisdiction at the Generating 

Station, there existed on January 7, 1988.no official Department of 

Labor policy that assigned coal handling and processing activities 

undertaken by an electric utility to MSHA's jurisdiction. On the 

contrary, the last official pronouncement of record prior to January 7, 

1988 that addressed such activities was the Secretary's declaration in 

Utility Fuels, supra, that coal handling and processing at power plants 

was "more feasibly regulated by OSHA·. 11 

Furthermore, there are a number of other anomalies revealed on 

remand that confound any productive inquiry into the jurisdictional 

issues placed before the Commission in this case. First, it appears 

that for several years the jurisdictional lines between MSHA and OSHA 

were determined by the union affiliation of the employees in the various 

locations throughout the Generating Station. That rule of thumb seems 

to have been imposed early on (See attachment to the MESA memorandum of 

July 28, 1977 identified as Gov. Ex. 2 and Tr. pp. 97-102.) and was only 

officially rescinded in District Manager Huntley's letter of April 12, 

1988 (Joint Ex. 3). Such a distinction assuredly has no foundation in 

the Mine Act. 

Second, for enforcement purposes MSHA considers the Iselin 

Preparation Company as the mine "operator" and identifies it as such, 

while the agency considers Penelec an "independent contractor" to, 

Iselin. (Once the January 7, 1988 citations were issued, MSHA required 

Penelec to obtain a "contractor" identification number. Tr. p. 88). In 

reality the Iselin Preparation Plant is owned by Penelec but is operated 

by Iselin, Penelec's independent contractor and a subsidiary of the 

Rochester and Pittsburgh Coal Company. Thus, the enforcement scheme 

1572 
employed by MSHA is based upon a characterization that is the complete 

obverse of the actual contractual relationship obtaining at the 

Generating Station. 

Third, on review the Secretary takes the position that all fuel 

handling facilities at the Generating Station that handle "run of mine" 

coal are subject to Mine Act jurisdiction and MSHA enforcement while all 

facilities handling processed coal are subjeGt to OSHA jurisdiction and 

enforcement. (Secretary's Brief, p. 21). Y,et the schematic "coal flow 

diagram," introduced in the initial hearing as Exhibit B, clearly 

indicates that the Huntley letter of April 12, 1988 sought to extend 

MSHA's jurisdiction over facilities solely dedicated to the handling of 

processed coal. For example, the bottom of the diagram depicts a route 

for truck-delivered pre-processed coal that completely bypasses the 

processing facilities at the Generating Station and delivers the coal 

directly to generating unit 3 of the power plant. Nevertheless, the 

schematic identifies this bypass as subject to MSHA's jurisdiction. 

In sum, the above evidence of record leads me to conclude that 

MSHA's authority to regulate the cited conditions at Penelec's 

Generating Station has not been properly exercised inasmuch as Penelec 

had insufficient and conflicting notice as to the scope of Mine Act 

authority up to the time the citations were issued in early January of 

1988. - Accordingly, on that basis alone I would reverse the judge and 

vacate the citations. 

On a more fundamental-level, however, the record thus far adduced 

calls into question whether dual enforcement by both MSHA and OSHA at 

the Homer City Generating Station and others similarly situated comports 

with Congressional intent and achieves the goals of the respective 

statutes from which the two agencies derive their authority and purpose. 

In her brief on review the Secretary acknowledges a contradictory 

position respecting Mine Act jurisdiction over power plants taken by her 

predecessor in Utility Fuels, supra, Secretary's brief, p. 12, but does 

not repudiate it. It could therefore be inferred that jurisdiction over 

the coal handling facilities at electric generating plants may be 

decided on an ad hoc, case by case basis. Such an approach, however, 

gives utilities and other coal consumers little guidance and less notice 

as to what their compliance responsibilities are to be from one location 

to another or from one day to another. lf It would also frustrate any 

attempts to develop corporate-wide safety programs for utility companies 

with multiple generating stations - some under OSHA jurisdiction alone, 

and some under combined MSHA and OSHA jurisdiction. 

11 In that connection, I note with interest the settlement agreement 

approved on August 3, 1990 by the judge in Westwood Energy Properties, 

supra, a companion case to the instant case, whereby MSHA agrees not to 

assert jurisdiction over an electric power generating station and its 

fuel handling facilities located on an abandoned coal mine site even 

though the fuel, known as culm, contains refuse coal and undergoes 

processes similar to those at issue here. 12 FMSHRC 

1573 
Such a lack of consisten~y and uniformity can have negative safety 

consequences even at a single location such as the Homer City Station. 

For instance, MSHA electrical standards for surface coal mines and 

facilities incorporate by reference the provisions of the National 

Electric Code (NEC). The NEC, however, explicitly exempts electric 

utility installations from its coverage. National Electric Code, § 90-

2(b)(5) (1971). The irony of this contradiction was not lost on the 

Fourth Circuit Court of Appeals when it held that a utility was not an 

independent contraGtor for purposes of the Mine Act: "MSHA would apply 

to electric utilities a code which by its very terms excludes electric 

utilities." Old Dominion Power Co. v. Donovan, 772 F.2d 92, 99 

(1985). '!:_/ 

These specific standard-based conflicts attest to the "whipsaw" 

effects that concerned the majority in our prior decision. Viewed 

against the safety and health goals of the two statutes in question, 

however, these conflicts loom larger than mere inconveniences to those 

industrial entities subject to dual enforcement: they constitute a 

potential for confusion that can actually diminish safety as the Fourth 

Circuit warned. Surely Congress could not have intended such a contrary 

result. 

The Mine Act's jurisdictional map as drawn by Congress is to be 

found in Section 3, specifically in the definitions of "coal or other 

mine" and "coal mine." Those definitions are not models of verbal 

brevity and clarity, but it is generally accepted that the definitions 

were broadly drawn in order to avoid questions of jurisdiction such as 

those that arose in the course of the Buffalo Creek disaster wherein the 

Bureau of Mines, MSHA 1 s predecessor, encountered challenges to its 

authority to regulate impoundments and retaining dams directly 

associated with coal mining. See S. Report No. 95-181, 95th Cong., 1st 

Sess. 14, reprinted in U,S. Code Cong. & Admin. News 1977, 3401, 3414. 

'!:_/ Amicus Edison Electric Institute (EEI) argues that even if a clear 

line of demarcation could be drawn between those areas subject to MSHA 

jurisdiction and those subject to OSHA jurisdiction at a single 

location, inconsistencies between the respective standards of the two 

agencies could have adverse consequences for employee safety. For 

example MSHA standards require a lock out and tagging system while 

repairs are made on electrical systems while OSHA permits utilities to 

employ a tagging system only. Compare 30 C.F.R. § 77.501 with 29 C.F.R. 

§ 1926.950(d). Similar differences arise with respect to clearances 

between mobile equipment and overhead power lines. Compare 30 C.F.R. 

§ 77.807.2 with 29 C.F.R. 1926.950(d) (Table V-1); 952(c)(2). EEI 

argues that such conflicting compliance requirements would complicate 

equipment design as well as employee safety work rules and training, and 

goes on to quote the Fourth Circuit in Dominion, supra: "Requiring 

electric utility employees suddenly to adhere to conflicting stanliards 

dependfng on their job location can only lead to danger, especially 

where work around high voltage is involved." 772 F.2d at 99. From a 

safety standpoint, the arguments of amicus and the conclusions of the 

Fourth Circuit are most compelling. 

1574 
The definition of "coal or other mine," set f(_th in section 

3(h)(l) of the Act is divided into three parts: (A) an area of land from 

which minerals are extracted; (B) private ways and roads appurtenant 

thereto; and (C) a panoply of facilities and structures associated with 

the extraction, milling, and preparation of coal and other minerals. 

Traditionally, the three subparts of section 3(h)(l) have been 

considered separate and discrete so that an entity falling within any 

one of the three could generally constitute a "mine" for purposes of the 

Act. Donovan v. Carolina Stalite Co., 734 F.2d 1S47 (D.C. Cir. 1984). 

Such a reading of the definition has led the Secretary here to argue 

Mine Act jurisdiction over Penelec's SA and SB head drives since they 

are "equipment" used in "the work of preparing coal" which is in turn 

defined in section 3(i). 

A plausible alternate reading of section 3(h)(l) would hold that 

subparts (B) and (C) are subordinate to subpart (A), i.e., that the 

facilities and structures referred to in (C) are those associated with 

the "area of land" referred to in (A). This alternate reading of 

section 3(h) (1) is more clearly reflected in the definition of "coalmine," section 3(h)(2), derived verbatim from the Federal Coal Mine 

Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1972). 

Close analysis of section 3(h)(2) indicates that the facilities 

listed therein are all delimited by a geographical referent: the "mine" 

as that is generally and traditionally understood. Stripped of all 

extraneous language except that necessary for discussion here, section 

3(h)(2) would read as follows: 

Coal mine means an area of land and all ... 

facilities •.• placed upon ... or above the surface 

of such land •.. used in the work of extracting ... 

bituminous coal .•. and the work of preparing the 

coal ... and includes custom coal preparation 

facilities. 

Put another way, the definition could be viewed as a pyramid, the 

delimiting and all-encompassing base of which is "an area of land" and 

the apex of which is "custom coal preparation facilities." 

To date the Commission has not exercised strict adherence to the 

traditional interpretation of "coal or other mine." If it had, Oliver 

W. Elam, Jr. Co., 4 FMSHRC S (January 1982) would have been decided 

differently. In Elam the Commission held that a commercial dock loading 

operation that broke and crushed coal for easier loading was not a 

"mine" even though, by a strict reading of sections 3(h)(l) and 3(i), it 

was a "facility" and it engaged in "the work of preparing coal" to the 

extent that it engaged in "breaking," "crushing" and "loading" coal. 

Similarly, strict adherence to the alternative interpretation of 

sections 3(h)(l) and 3(h)(2), proferred above, would result in an,overly 

circumscribed scope of jurisdiction that would limit Mine Act authority 

to those facilities located on the same parcel of land from which the 

coal is extracted. 

A rational path between the two extremes and one that comports 

1575 
with Congressional intent is that. devised by the Commission in Elam: 

that one looks not only to the facility or activity in question but also 

"into the nature of the operation performing such activities" Id. p. 7. 

In other words, as pithily expressed by Commissioner Doyle in her 

earlier dissent, Congress did not intend MSHA "to follow the coal 

wherever it might go." 11 FMSHRC 1890. 

The "nature" of Penelec's operation is electric power generation. 

The feedstock for that power generation could be oil, gas, uranium, culm 

or coal. The fact that coal was the chosen feedstock here does not 

compel a conclusion that the SA and SB head drives constitute a "mine" 

for purposes of the Act. 

At some point one has to look up from the text of the statute and 

view the jurisdictional question through the lens of common sense and 

practicality, mindful that Congress intended to regulate a specific and 

identifiable sector of commerce by passing the Mine Act. I conclude 

that Penelec's coal handling facilities, including the SA and SB head 

drives, do not fall within that sector nor within the range of 

facilities meant to be included in sections 3(h)(l) and 3(h)(2). 

That conclusion is buttressed by the record adduced here. Dual 

jurisdiction between OSHA and MSHA at Penelec 1 s Generating Station and 

others similarly situated, with its attendant potential for conflicting 

compliance requirements, can have negative consequences for safety in 

contravention of the Congressional purposes at the heart of both the 

Mine Act and the Occupational Safety and Health Act. 

Accordingly, upon careful consideration, I would vacate the 

citations at issue for lack of jurisdiction and dismiss the proceeding. 

1576 
Commissioner Doyle, in favor of reversing the decision of the 

administrative law judg·e:· 

For the reasons set forth in my dissent, a copy of which is 

attached, I disagreed with the Commission's earlier determination that 

"MSHA possesses statutory authorization to regulate working conditions 

associated with Penelec 1 s preparation of. coal •.• 11 11 FMSHRC 1875, 1882 

(October 1989). Nothing in either the administrative law judge's 

decision on remand or the decision affirming that decision dissuades me 

from my earlier view that the operations cited by the Secretary are not 

subject to the jurisdiction of the Mine Act. Accordingly, I would 

reverse the judge and dismiss the case against Penelec. 

g~.d,~(z Commissioner 

1577 
Commissioner Doyle, dissenting: 

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

o~ rator 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 ~SHA 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 wit.-4.n and out-side of the 

record that show conflicting indications as co 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. 

1578 
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 juri~diction 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: 

1579 
[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 usuallydone by the operato ... 

of the coal mine. 

A portion of the legislat1ve 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 questi.oned. 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 d01•bts be resolved in favor 

of inclusion of a facility within the ccverage 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 

1580 
and health law, applicable to all minin~ activity." S. Rep. No. 461, 

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

aimed at an industry with an acknowledged histor•;- of serious accidents." 

Marshall v. Stoudt's Ferry Preparation Co., 602 1'' .. 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. Car6lina 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 wlth 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. 

1581 
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 arid that 

facilities using run-of-mine coal would be subject to Mine Act juris-· 

diction, 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 Mining 

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 pllysical 

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

§802(h)(l). 

1582 
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 che Mine Act because the coal preparation was not done to 

"meet customers' specifications nor to render the coal fit for any particular use." MSHAv. 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 actlvities," 

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, np 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). 

1583 
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 cases, 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 ryrong is the "function" 

test referred to by the majority, which require~.b that the ..claimant's 

job be "integral to the extraction or preparatL:1 of coal, not ancillary 

to the delivery and commercial use of pr.ocessed 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~ 

1584 
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 preparec.' 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 sec;tions 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 

~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"'Oi1found 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 wi thou.t 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 

1585 
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 producti 'U 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. 

Scott W. Clearwater, Esq. 

Timothv N. Atherton, Esq. 

Bishop-, Cook, Purcell & Reynolds 

1400 L Street, N.W. 

Washington, D.C. 20005 

Carl C. Charneski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Stephen C. Yohay, Esq. 

Jones, Day, Reavis & Pogue 

1450 G Street, N.W. 

Washington, D.C. 20005 

Commissioner 

z~1.a~ 

Administrative Law Judge Gary Melick 

Federal Hine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1586 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

HARRY RAMSEY 

v. 

INDUSTRIAL CONSTRUCTORS 

CORPORATION 

1730 K STREET NW, 6TH FLOOR 

~ASHINGTON, D.C. 20006 

August 29, 1990 

Docket No. WEST 88-246-DM 

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

DECISION 

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. (1988)("Mine Act" 

or Act"), Industrial Constructors Corporation ("ICC"), seeks review of a 

decision by Commission Administrative Law Judge John J. Morris 

sustaining a complaint of discrimination brought by Harry Ramsey 

pursuant to section 105(c)(l) of the Mine Act. !/ In an Interim Order 

the judge found that two acts of discrimination by ICC had occurred: the 

first, when Ramsey was constructively discharged on August 13, 1987, as 

the result of a safety related complaint, and the second, when ICC 

subsequently refused to rehire him. 11 FMSHRC 1585 (August 1989)(ALJ). 

In a final decision ICC was ordered to pay Ramsey back pay, interest, 

attorney's fees and costs. 11 FMSHRC 1988 (October 1989)(ALJ). The 

Commission granted ICC's petition for discretionary review. For the 

reasons that follow, we reverse the judge's decision. 

Complainant Ramsey was employed at ICC's Colosseum gold mine, 

located near San Bernadine, California, from May 1987 until August 1987. 

With both his prior employer and his own company, Ramsey operated and 

hired operators of heavy equipment. At ICC, Ramsey initially opera~ed 

lf Section 105(c)(l) provides in pertinent part: 

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]. 

30 U.S.C. § 815(c)(l). 

1587 
various types of equipment at the mine site .-nd briefly worked as a 

laborer. Tr. 24-36. In June or early July 1987, Ramsey was assigned as 

a loader operator to ICC's newly established rock crusher operation, but 

actually worked as the crusher operator because the individual hired as 

the crusher operator failed to appear for work. On July 18, 1987, he 

was reclassified by the foreman, Clifford Morrison, from loader operator 

to crusher operator with a pay increase. Exh. C-2, Tr. 37-38, 155. 

As a crusher operator Ramsey was located in the control tower, an 

8'x8' building, 20 feet in height with windows on all sides, affording 

the operator a view of the working area. Tr. 40-42, Exh. C-3. The 

duties of the crusher operator were to monitor and insure the continuous 

flow of material (rock) into and out of the hopper and to shut down the 

crusher whenever the hopper became blocked up or when a problem with the 

conveyor belt arose. Tr. 38-40, 44. 

Ramsey testified that under normal procedures, when the mechanic 

or the foreman noticed a buildup of material, they would inform him by 

hand signal of the problem. Ramsey, under the foreman's or mechanic's 

instructions, would then alert the three or four workers in the area, 

first by a horn signal, as a general alert, and then by hand signals, 

directing them to the specific problem area. When all workers were in 

view, the machinery was then shut down, and the blockage or spillage 

could then be safely removed. Tr. 38-40, 44-45. From a designated area 

the mechanic or foreman would also inform him by hand signals when they 

wished him to shut off the water spray system, which primarily 

controlled dust during production and at times was used to increase the 

moisture content of the material being processed. Tr. 47. It is 

undisputed that standard operating procedure, shortly before the end of 

each production shift, was to clean the buildup of mud from the screens 

by turning off the water sprays while keeping the crusher running, thus 

allowing the dry material to hit the screens, chip.ping away the mud. 

Tr. 55, 160. 

On August 12, 1987, Ramsey worked the swing shift, which began 

about 4:00 p.m. and ended about 2:00 a.m. the next morning. Ramsey 

testified that about 45 minutes before the end of the shift while in 

production crushing rock, foreman Morrison gave him a hand signal from 

the work area to shut off the water sprays. Ramsey initially failed to 

comply, explaining that this was the first shift since the operation had 

started that they had "run full production all night"; that production 

"had been running smooth all night"; that "we had a heck of a stockpile 

of material out there"; and that he was not anticipating any shut down 

with 30 to 45 minutes production time still remaining before their 

normal shut down time. Tr. 45-46. 

When Morrison, after a minute or two, "gave me a real strong 

signal again to shut it off, 11 Ramsey then did as directed. Tr. 44-47, 

123-24. According to Ramsey, within a few minutes the dust was such 

that he "couldn't see the window of the control tower in front of me" 

and was unable to see any of the employees. He testified that normal 

procedure was to shut down the machinery automatically if the dust was 

so thick that you couldn't see at all. Tr. 47-50. After two or three 

minutes, he shut down the crusher and he stated that about 5 minutes 

1588 
later the dust had cleared sufficiently so that he could see "a little 

bit," making out "more or less shadows or whatever the equipment is." 

Tr. 52. At that point Mo.rrison climbed into the tower and asked why 

Ramsey had "shut the plant down." Ramsey responded that if he could not 

see after the water was cut off, he could not operate. According to 

Ramsey, Morrison replied "I'll tell you when to shut the water on and 

when to shut it off." Tr. 54, 59, 124-26. 

Morrison left the tower and Ramsey restarted the belt for about 

five minutes, the normal procedure used to clean off the screens before 

the next shift. Tr. 54-56. Ramsey then met Morrison outside the tower 

where he again asked if he (Ramsey) had the "latitude" to turn the water 

on and off when he could not "see the people under me", and received the 

same reply. Tr. 59-61, 120. The conversation continued and Ramsey 

repeated a number of times that if he did not have the "latitude" to 

turn the water off, "I wouldn't work for him under those conditions," 

because "it is not safe." Tr. 60-61, 120. Ramsey testified he meant 

not working for Morrison, and that it was not his intention to stop 

working for ICC. Tr. 61, 116. The judge found, however, that turning 

in his hard hat and flashlight and saying he "quit" established that he 

did quit. 11 FMSHRC 1589. At about 10:00 a.m. that same day, Ramsey 

telephoned mine superintendent Orville Hildebrandt to inform him of the 

events and was told by Hildebrandt that he would check into it and get 

back to him. About one week later, during which Ramsey did not work, he 

was told by Hildebrandt's secretary that there was no work available for 

him. Tr. 65-69. Ramsey testified that he has continuously but 

unsuccessfully sought employment based on his work experience, sending 

out 60-70 resumes or applications. Tr. 81-84. He has worked at other 

jobs, operating an unsuccessful novelty sales company, managing a mobile 

home park, and working as a "ranger" at a golf course. Tr. 87-89. On 

cross-examination Ramsey stated that his understanding with respect to 

being hired by ICC was that his employment was to be continuous during a 

three-year project, but that there was no specific agreement on that 

issue. Tr. 112. 

ICC Supervisor Morrison testified that ten or fifteen minutes 

before the end of the shift on August 13, he signaled Ramsey to turn off 

the water sprays in order to clean the screens. He had personally 

insured the safety of all employees by gathering them together with him 

or in the parts van, and that all could be seen by Ramsey. Tr. 160-61, 

178-79. After turning off the water, Ramsey also turned the crusher 

off. Tr. 160. Morrison also testified that Ramsey had authority to 

shut down if the employees could not be seen by him. Tr. 160-61. 

Morrison believed the disagreement with Ramsey was over the authority to 

shut off the water, not to shut down the crusher. Tr. 162. He stated 

that outside the tower Ramsey handed him his hard hat and flashlight and 

said he quit, and that Morrison then said nothing, but walked away. 

Tr. 162. He stated there was never any dispute that Ramsey had 

authority to shut down the crusher for safety reasons. Tr. 163. In his 

opinion, visibility that night never reached a dangerous extent, and he 

could always see Ramsey in the tower. Tr. 165-66. 

Dick Nash, ICC personnel manager, testified that the crusher 

operations were completed in September 1987, and that Morrison, together 

1589 
with everyone on the crusher night shift, was terminated on 

September 25, 1987, and everyone on the day shift, one day later. 

Tr. 200-03. Mine Superintendent Hildebrandt testified that he decided 

not to rehire Ramsey because of the August 12 incident and because of an 

earlier incident in which Ramsey had complained to him and threatened to 

quit in a disagreement with another supervisor about the correct method 

of using the bucket on a loader so as to not damage the equipment. Tr. 

246-48. 

On August 30, 1987, Ramsey filed a complaint of discrimination 

with the Department of Labor's Mine Safety and Health Administration 

("MSHA"), and on June 14, 1988, the Secretary of Labor filed a 

discrimination complaint on behalf of Ramsey pursuant to 30 U.S.C. 

§ 815(c)(2). On October 20, 1988, counsel for the Secretary moved to 

dismiss that complaint and to permit Ramsey to file a complaint on his 

own behalf, pursuant to 30 U.S.C. § 815(c)(3), on the grounds that 

Ramsey had refused to accept a settlement offer considered reasonable by 

the Secretary. Following retention of counsel by Ramsey, the judge, on 

January 23, 1989, granted the Secretary's motion and the matter 

proceeded to hearing. ~/ 

In upholding Ramsey's complaint of discrimination, the judge found 

that Ramsey was engaged in a protected activity when he complained to 

Morrison about the dusty conditions, which precluded him from seeing the 

workers in proximity to the crusher, and concluded that "the facts here 

involve a mix of what would occur when the crusher operator turned off 

the crusher and/or the water. The critical point is that Ramsey's 

complaint was clearly safety related." 11 FMSHRC at 1595. Quoting 

extensively from Ramsey's September 15, 1987 statement to MSHA 

investigators, the judge found a good faith concern for the safety of 

other miners and a nexus between his complaint and possible injury to 

others. 11 FMSHRC at 1595-98. As to whether Ramsey communicated his 

complaint to management, the judge concluded: 

It is apparent from the record here that the words 

spoken encompassed and communicated the safety 

hazard. Further, by their very nature safety 

complaints often revolve in a heated and 

argumentative manner. Compare, Secretary on behalf 

of John Gabossi v. Western Fuels-Utah, Inc., 

9 FMSHRC 1481 (1987). 

1d. at 1598. 

Next, the judge found that Ramsey was constructively discharged in 

that "ICC created or maintained conditions so intolerable that a 

reasonable miner would have felt compelled to resign," which is the 

standard of law applied to constructive discharge under Simpson v. 

FMSHRC, 842 F.2d 453 (D.C. Cir. 1988). Further, the judge rejected 

~/ The judge's granting of the Secretary's motion effectively 

converted the complaint to an action brought pursuant to 30 U.S.C. 

§ 815(c)(3). 

1590 
ICC's reasons for not rehiring Ramsey and held that he was discriminated 

against a second time when ICC refused to rehire him. 11 FMSHRC at 

1599-1600. Lastly, rejecting ICC's contention that Ramsey along with 

all other crusher employees would have been terminated on September 27, 

1987, the judge awarded back pay with interest from August 13, 1987, to 

August 31, 1989, when Ramsey declined reinstatement under an agreement 

between the parties. 11 FMSHRC at 1603. 

A miner alleging discrimination under the Act establishes a prima 

facie case of prohibited discrimination under the Mine Act by proving 

that he engaged in protected activity and that the adverse action 

complained of was motivated in any part by that activity. Secretary on 

behalf of Fasula v. Consolidation Coal Co., 2 FMSHRC at 2786, 2797-2800 

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

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

Robinette v. United Castle Coal 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 in no part 

motivated by protected activity. If the operator cannot rebut the prima 

facie case in this manner, it nevertheless may defend affirmatively by 

proving that it also was motivated by the miner's unprotected activity 

alone and would have taken the adverse action in any event for the 

unprotected activity. Fasula, supra; see also Eastern Assoc. Coal Corp. 

v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Robinette, supra; 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 Fasula-Robinette test). 

At issue before us here is a work refusal based on an asserted 

s&fety hazard to miners other than the complainant himself. In 

Secretary on behalf of Philip Cameron v. Consolidation Coal Co., 

7 FMSHRC 319 (March 1985), aff'd sub nom Consolidation Coal v. FMSHRC, 

795 F.2d 364 (4th Cir. 1986), the Commission held that 11 in certain 

limited circumstances," the protection of section 105(c) of the Mine Act 

does attach to a work refusal premised on hazards to others: 

Therefore, we hold that a miner who refuses to 

perform an assigned task because he believes that to 

do so will endanger another miner is protected under 

section 105(c) of the Mine Act, if, under all the 

circumstances, his belief concerning the danger 

posed to the other miner is reasonable and held in 

good faith. Bjes v. Consolidation Coal Co., 

6 FMSHRC 1411, 1418 (June 1984), citing Secretary on 

behalf of Robinette v. United Castle Co., 3 FMSHRC 

at 807-12. We emphasize, however, the need for a 

direct nexus between performance of the refusing 

miner's work assignment and the feared resulting 

injury to another miner. In other words, a miner 

has the right to refuse to perform his work if such 

refusal is necessary to prevent his personal 

participation in the creation of a danger to others. 

Of course, as with other work refusals, it is 

necessary that the miner, if possible, "communicate, 

1591 
or at least attempt to communicate, to some 

representative of the operator his belief in the .•. 

hazard at issue," Sammons v. Mine Services Co., 

6 FMSHRC 1391, 1397-98 (June 1984)(emphasis added), 

quoting Secretary on behalf of Dunmire and Estle v. 

Northern Coal Co., supra, 4 FMSHRC at 133, and that 

the refusal not be based on "a difference of opinion 

-- not pertaining to safety considerations -- over 

the proper way to perform the task at hand." 

Sammons, 6 FMSHRC at 1398. 

7 FMSHRC at 324. 

Our review of the testimony convinces us that the substantial 

evidence of record does not support the judge's conclusion that Ramsey 

was engaged in protected activity on August 13, 1987. As this 

Commission has consistently recognized, the term "substantial evidence" 

means "such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion." See, ~· Secretary v. Michael 

Brunson, 10 FMSHRC 594, 598 (May 1988), Secretary v. Mid-Continent 

Resources, Inc., 6 FMSHRC 1132, 1137 (May 1984) quoting Consolidated 

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). We are guided by the 

settled principle that in reviewing the whole record, an appellate 

tribunal must also consider anything that "fairly detracts" from the 

weight of the evidence that may be considered as supporting a challenged 

finding and must not sustain a finding "merely on the basis of evidence 

which in and of itself justified it, without taking into account 

contradictory evidence or evidence from which conflicting inferences 

could be drawn ... "Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 

(1951). 

Ramsey, himself, on direct examination twice testified 

unequivocally that he initially refused and then reluctantly complied 

with Morrison's signals to turn off the water sprays solely because he 

thought production was going so well, that a large amount of material 

awaited crushing, and that he considered it too early in the shift to 

cut off the water sprays, which was routinely done shortly before the 

end of each shift in order to clean the screens. Ramsey also testified 

that under Morrison's instructions whenever a potential problem or 

safety hazard arose, Ramsey would alert the employees first by a horn 

signal, then by hand signals, directing them to an area where they could 

be observed by him. Tr. 38-40, 44-45. If, despite his testimony, 

Ramsey's reactions to Morrison's signals were safety related, we find it 

inconsistent that he did not use the established audio and visual 

signals to alert the employees and ensure their safety before any dust 

visibility problem arose. 

The testimony of both Ramsey and Morrison at hearing consistently 

identified the basis of Ramsey's complaint as his "latitude tf turn the 

water on or off." The testimony further establishes that Ramsey's 

authority to turn off the crusher for safety related concerns was not 

challenged. Unlike the judge, we place little reliance on Ramsey's 

September 15, 1987 statement to MSHA investigators quoted extensively in 

the decision at 1195-97. We view Ramsey's statement as unproved 

1592 
allegations made in support of his discrire .1ation complaint, and we 

consequently cannot accord it sufficient weight to overcome his contrary 

testimony adduced under oath at the hearing subject to the rigors of 

cross-examination. 

In Sammons, supra, this Commission emphasized that in 

discrimination complaints involving work refusal, the alleged protected 

activity must not be based on a "difference of opinion -- not pertaining 

to safety considerations -- over the proper way to perform the task at 

hand." 6 FMSHRC at 1398. Ramsey's own testimony makes clear that his 

initial refusal and later reluctance to shut off the water sprays were 

entirely production oriented. He simply believed it too early in the 

shift, with production going well and a large stockpile of raw materials 

yet to be processed, to stop production in order to clean the screens 

for the oncoming shift. In light of his own testimony, we view Ramsey 1 s 

subsequent attempts to link his work refusal with safety related 

concerns to be too little, too late, and inconsistent with the facts. 

Accordingly, under Cameron, supra, we find that Ramsey 1 s work refusal 

was not a protected activity under section lOS(c) of the Mine Act. 

For these same reasons we find that Ramsey failed to communicate 

to Morrison any true concern with a safety hazard underlying his work 

refusal. In so concluding, we recognize that as the judge noted, safety 

complaints are often couched in a heated or argumentative manner, and 

that a brief, simple communication rather than a detailed statement is 

sufficient, so long as it describes the nature of the safety hazard to 

the operator. See~· Secretary/UMWA v. Emerald Mines Corp., 8 FMSHRC 

1066, 1074, (July 1986), aff 1 d sub nom. Emerald Mines Co. v. FMSHRC, 829 

F.2d 31, (3rd Cir. 1987).----r;-this instance however, there was no 

communication descriptive of a safety complaint but only a heated 

disagreement with a supervisor over Ramsey 1 s "latitude" to shut the 

water on and off and who would make the decision to stop production. 

See also Conatser v. Red Flame Coal Co., Inc., 11 FMSHRC 12, 17, 

(January 1989). 

We next address the judge 1 s conclusion that Ramsey was 

constructively discharged. In Simpson, supra, the court adopted the 11 objective" standard for establishing constructive discharge, holding 

that constructive discharge occurs whenever "a miner engaged in a 

protected activity can show that an operator created or maintained 

conditions so intolerable that a reasonable miner would have felt 

compelled to resign." 842 F.2d at 461. That standard, the court 

explained, is the one employed in cases arising under the Civil Rights 

Act of 1964 and is the same test employed in adjudicating constructive 

discharge cases under other statutes protecting employees against 

adverse job actions. 842 F.2d. at 461-62. The cases cited by the court 

in Simpson agree that a finding of constructive discharge must 

demonstrate "aggravating factors such as a continuous pattern of 

discriminatory treatment." Watson v. Nationwide Insurance Co., 823 F.2d 

360, 361 (9th Cir. 1987); Clark v. Marsh, 665 F.2d 1168, 1174 (D.C. Cir. 

1981). The cases also have consistently emphasized that "a single 

isolated instance of employment discrimination is insufficient as a 

matter of law to support a finding of constructive discharge." Watson, 

supra, 823 F.2d at 361; see also Satterwhite v. Smith, 744 F.2d 1380, 

1593 
1381, (9th Cir. 1984); Nolan v. Cleland, 686 F.2d 806, 813; (9th Cir. 

1982). 

In Simpson, the complainant quit his job after the operator had 

failed repeatedly over a period of several weeks to perform the required 

pre-shift or on-shift examinations or to test for the presence of black 

damp, gas, or water in the underground coal mine. The Commission 

referred to the operator's repeated failures as "blatant violations of 

the Mine Act, 11 (8 FMSHRC at 1038) a description noted by the court in 

its finding that S1mpson had been constructively discharged. 842 F.2d 

at 463. 

Although the judge stated in his decision that he felt constrained 

under the Court's holding in Simpson to reach a finding of constructive 

discharge, we find no parallel between the working conditions involved 

in Simpson and the conditions of August 13 described by Ramsey in this 

case. Nor do we see any similarity between the continuous pattern of 

misconduct on the part of the operator in Simpson and the single 

incident on which this case rests. In sum, we are persuaded by the 

testimony of record that Ramsey voluntarily quit his job at the end of 

the shift and find no evidence to support a finding that a reasonable 

miner would have felt compelled in this instance to resign because of 

intolerable conditions created or maintained by operator misconduct as 

required under Simpson for a finding of constructive discharge. 

On review, ICC also challenges the judge's finding that a second 

act of discrimination occurred when ICC refused to rehire Ramsey after 

August 13, 1987. If Ramsey's work refusal constituted protected 

activity under the Mine Act, ICC's refusal to rehire him would be a 

second unlawful act of discrimination if the evidence demonstrated that 

the refusal was based on that protected activity. Simpson, 842 F.2d at 

454, 464. If Ramsey's work refusal did not constitute protected 

activity, ICC's refusal to rehire him would be discriminatory only if 

the evidence established "some nexus to protected activity." 842 F.2d 

at 464. Rejecting ICC's arguments that Ramsey was not rehired because 

of two non-safety related disagreements with supervisors, the judge 

found that the incident of August 13, 1987 involved protected activity 

and that ICC's refusal to rehire Ramsey was therefore a second act of 

discrimination. 

Because we have found that Ramsey's work refusal of August 13 was 

not a protected activity, a finding of discriminatory conduct in ICC's 

refusal to rehire him must rest on evidence establishing "some nexus" 

with other protected activity. Other than the August 13 incident, 

however, no other protected activity is alleged. As the judge noted at 

11 FMSHRC 1593, n. 3, Ramsey's earlier complaint to Hildebrandt alleged 

that supervisor Brown's instructions as to how the loader should be 

operated would result in damage to the equipment and was not safety 

related. Absent any nexus with other protected activity, we find no 

evidence to support the judge's finding that ICC discriminated against 

Ramsey for a second time when it refused to rehire him. 

1594 
Accordingly, we reverse the judge's findings that Ramsey engaged 

in protected activity and was constructively discharged. We also 

reverse his finding that ICC's refusal to rehire Ramsey constituted a 

second act of discrimination. }/ 

}/ Commissioner Lastowka elected not to participate in this decision. 

1595 
Distribution 

Michael T. Heenan, Esq. 

Ronald E. Heisburg, Esq. 

Smith, Heenan & Althen 

1110 Vermont Avenue, N.W. 

Suite 400 

Washington, D.C. 20005 

William T. Murphy, Esq. 

Washington Corporations 

101 International Way 

Missoula, Montana 59802 

Norman J. Reed, Esq. 

Nathaniel J. Reed, Ltd. 

1405 S. Maryland Pkwy. 

Las Vegas, Nevada 89104 

Administrative Law Judge John J. Morris 

Federal Hine Safety and Health Review Commission 

280 Colonnade Center 

1244 Speer Boulevard 

Denver, Colorado 80204 

1596 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG Pl KE 

FALLS CHURCH, VIRGINIA 22041 

AUG 21990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. WEVA 90-12 

A.C. No. 46-03805-03933 

v. 

Martinka No. 1 Mine 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Mark R. Malecki, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Vi.rginia, for 

the Petitioner; 

Rebecca J. Zuieski, Esq., FURBEE, AMOS, WEBB & 

CRITCHFIELD, Morgantown, West Virginia, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), 

seeking a civil penalty assessment in the amount of $850 for an 

alleged violation of mandatory safety standard 30 C.F.R. 

§ 77.807-3, as stated in a section 104(d) (2) "S&S" Order 

No. 2944317, served on the respondent by an MSHA inspector on 

May 22, 1989. The respondent filed a timely answer contesting 

the alleged violation and a hearing was held in Morgantown, 

West Virginia. The parties filed posthearing briefs, and I have 

considered their arguments in my adjudication of this matter. 

Issues 

The issues presented in this case are (1) whether the 

condition or practice cited by the inspector constitutes a 

violation of the cited mandatory safety standard, (2) whether the 

1597 
alleged violation was "significant and substantial" (S&S), 

(3) whether the violation was the result of the respondent's 

unwarrantable failure to comply with the cited standard, and 

(4) the appropriate civil penalty to be assessed for the violation, taking into account the statutory civil penalty assessment 

criteria found in section llO(i) of the Act. Additional issues 

raised by the parties are disposed of in the course of this 

decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977; 

Pub. L. 95-164, 30 u.s.c. § 801 et seg. 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et seg. 

Stipulations 

The parties stipulated to the following (Tr. 8-10, exhibits 

P-1, P-1-A, P-2): 

1. The respondent is the owner and operator of 

the Martinka Mine, and the operations of the mine are 

subject to the Act. 

2. The presiding judge has jurisdiction to hear 

and decide this matter. 

3. MSHA Mine Inspector Spencer Shriver was acting 

in his official capacity when he issued the contested 

order, and a true copy of the order was served on the 

respondent or its agent as required by the Act. 

4. A copy of an MSHA's Proposed Assessment Data 

Sheet (exhibit P-1), which sets forth (a) the number of 

assessed non-single penalty violations charged for the 

years 1986 through February, 1989, (b) the number of 

inspection days per month in said period and (c) the 

mine and controller tonnage for year 1988, is admitted 

for the record in this case, and the respondent has no· 

facts to contradict the accuracy of this information. 

5. The respondent does not contest the fact that 

the Martinka Mine has not had a complete inspection 

free of unwarrantable violations since the issuance of 

Citation No. 0859286 dated September 1, 1981. 

6. A prior violation alleging a violation of 

section 77.807-3, was issued to the respondent at the 

Martinka Mine on or about February 2, 1989. 

1598 
7. A copy of an MSHA computer print-out reflecting the history of prior assessed violations issued at 

the Martinka No. 1 Mine for the period May 30, 1987 

through May 29, 1989, may be admitted as part of the 

record in this case (Tr. 10, exhibit P-1-a). 

8. Assuming the petitioner establishes that a 

violation of section 77.807-3, occurred in this case, 

the parties agree that the violation is significant and 

substantial (S&S) (Tr. 28). 

Discussion 

This case concerns a section 104(d) (2) "S&S" Order 

No. 2944317, issued on May 22, 1989, by MSHA Inspector Spencer 

Shriver, alleging a violation of mandatory safety standard 

30 C.F.R. § 77.807-3. The cited condition or practice states as 

follows: 

At about 11:30 a.m., on May 19, 1989, an electrical accident occurred at the North Mains drift substation, while spreading gravel north of the substation 

fence, an LTL 9000 Ford triaxle truck operated by 

Robert Radabaugh of Radabaugh Trucking Inc., contacted 

an energized 34,500-volt powerline with the elevated 

bed of his truck. None of the truck drivers on this 

job had received hazard training on maintaining clearance from high voltage lines. There were no plans or 

prints available at the job site giving the height of 

the powerline above ground. Also, Citation No. 3106019 

was issued by Edwin w. Fetty on February 2, 1989, for 

failure to maintain 10 fe·et clearance of 34, 500-volt 

circuit over trucks with elevated beds at the refuse 

area. This should have caused mine managem·ent to take 

effective action to prevent contact of truck beds with 

high-voltage lines. 

Petitioner's Testimony and Evidence 

MSHA Inspector Spencer A. Shriver testified that he is an 

electrical engineer and holds bachelor's and master's degrees 

from the West Virginia University. He confirmed that he went to 

the mine on Friday, May 19, 1989, after his supervisor informed 

him that a dump truck had contacted a high voltage line, and when 

he arrived at the mine he met Paul Zanussi, a company safety 

representative, and he confirmed that an accident had occurred. 

Mr. Spencer stated that he observed a Ford tri-axle dump truck 

under the high voltage line, and that several tires had been 

apparently blown out by the electrical contact with the line. A 

mechanic for the trucking company was changing the tires to 

prepare the removal of the truck. Mr. Spencer concluded that a 

1599 
violation of section 77.807-3, occurred because section 77.807-2, 

prohibits the operation of equipment within 10 feet of an energized overhead powerline~ and if this should occur, section 

77.807-3, requires the powerline to be deenergized or other 

precautions. Since the truck contacted the powerline, resulting 

in considerable damage to the truck, he concluded that a violation had occurred (Tr. 13-17). 

Mr. Shriver spoke with the respondent's project engineer, 

James Barton, and to the foreman of the general contractor, Mike 

Powers, who were eye witnesses to the incident. Mr. Barton told 

him that he had observed three or four trucks "tailgating gravel" 

through the area in question, and that the last truck through, 

which was driven by Robert Radabaugh, contacted the overhead 

neutral line with the truck bed overhang, pulling the two wooden 

support structures close together, and when the phase conductors 

dropped down and contacted the truck, a "fairly spectacular short 

circuit" occurred (Tr. 18). 

Mr. Shriver stated that Mr. Powers informed him that he was 

following the trucks, and was positioned to the left of 

Mr. Radabaugh's truck watching the flow of gravel out of the 

truck, and he explained that as the truck's continue travelling 

and laying down a layer of gravel, the driver has to continue 

raising the truck bed to keep the gravel flowing out. Mr. Powers 

was observing the truck in question to make sure that the gravel 

was not being spread too thick or too thin, and he was also 

watching for contact with high voltage lines. When Mr. Powers 

saw that the truck bed had hooked the overhead neutral conductor, 

he signaled for Mr. Radabaugh to stop, and another driver yelled 

for him to stop. However, before stopping, Mr. Radabaugh's truck 

pulled the support structures together, and the conductors 

dropped down and contacted the truck resulting in a short circuit 

(Tr. 19) . 

Mr .. Shriver stated that Mr. Radabaugh was taken to the 

hospital as a precautionary measure, and that he spoke with him 

3 days later when he was back at the job site. Mr. Radabaugh 

confirmed that Mr. Powers was following behind him giving him 

hand signals, and he also confirmed that he was told not to drive 

past a wooden footbridge across a gully near the one-pole structure which supported the overhead powerlines. Mr. Radabaugh also 

stated that when he was near the northeast corner of the substation, he became concerned that he would go over the bank and 

was standing up in the cab of his truck in order to look out over 

the engine to see how close he had come to the bank, and that 

while doing so hooked the neutral conductor which resulted in the 

short circuit (Tr. 20). Mr. Shriver identified a memorandum 

which he prepared for the MSHA district manager concerning his 

accident investigation findings, and a copy of his notes and a 

sketch of the accident sketch which he prepared (exhibits P-5 

through P-7). 

1600 
Mr. Shriver believed the violation resulted from an unwarrantable failure on the part of the respondent because it did not 

know how high the voltage line was above the ground, did not know 

how close the trucks could come to the high voltage line, and did 

not know how high the truck bed would be when it was fully 

raised. He confirmed that Mr. Barton had no knowledge of any of 

this information, and although they found several prints or 

drawings of the area in the contractor's trailer, they did not 

show how high the voltage line was above the ground. Mr. Shriver 

believed that the respondent was negligent for not having this 

information. He also confirmed that another MSHA electrical 

inspector (Fetty) had previously issued a citation at the site on 

February 2, 1989, because a truck was under the same voltage 

line, within 10 feet of the line, and that this should have 

caused the respondent to take steps to insure that no vehicles 

are within 10 feet of the line (Tr. 29). 

Mr. Shriver stated that when he previously worked for a 

power company, any time vehicles were in the area of high voltage 

lines, he knew the height of the truck and the lines, and that if 

there were any questions about this, someone would be assigned to 

stop a vehicle before it got too close to a line, or barricades 

or flagged and roped barrels would be put up to warn a driver 

(Tr. 3 0) • 

Mr. Shriver stated that Mr. Barton did not inform him how 

long he had been present at the site, or whether it was .his first 

visit there. Mr. Shriver confirmed that when he spoke with 

Mr. Radabaugh and his brother, they informed him that they had 

not received any hazard training with respect to overhead lines. 

However, the following Monday after the accident, a company 

official gave all of the truck drivers hazard training concerning 

overhead powerlines (Tr. 31). 

On cross-examination, Mr. Shriver stated that with respect 

to the "other precautions shall be taken" language found in 

section 77.807-3, and assuming that one knew that a truck would 

come within 10 feet of an energized powerline, he would expect a 

barricade with a rope or flags to be installed so that a truck 

could not pass through the area, or as a minimum precaution, 

someone should be stationed in the area so that he could stop the 

truck. Any such precautions would have to be as effective as 

deenergizing the powerline (Tr. 32). 

Mr. Shriver confirmed that his notes reflect that Mr. Powers 

told him that he had instructed Mr. Radabaugh not to go past a 

wooden footbridge near the last pole of the high voltage circuit, 

which would have kept the truck bed about 15 feet from the power 

conductors, and that Mr. Radabaugh admitted that he had received 

this 1nstruction (Tr. 34). Mr. Shriver also confirmed that 

1601 
Mr. Powers ·told Mr. Radabaugh not to go beyond the wooden footbridge so that he would not contact the powerline, and if 

Mr. Radabaugh had not gone beyond that location, he would not 

have contacted the power conductors (Tr. 36). 

Mr. Shriver confirmed that he issued the contested section 

104(d) (2) order to the respondent, and also issued section 104(d) 

citations to Radabaugh Trucking and the contractor (Coal Fuel 

Services), and that they were all essentially identical (Tr. 37). 

He also confirmed that he was not familiar with MSHA's hazard 

training policies, and that he included the lack of training as 

part of his order because Mr. Radabaugh contacted the powerline 

and told him that he had not been trained. Although Mr. Shriver 

issued no citation for failing to hazard train Mr. Radabaugh, he 

considered the lack of training as part of his unwarrantable 

failure finding because he believed the driver needed training 

because he contacted the powerline (Tr. 41). 

Mr. Shriver confirmed that he issued a section 107(a) imminent danger order to the contractor, Coal Field Services, and 

that he did indicate to respondent's personnel on the day of the 

accident that he did not believe that the respondent was negligent. He concluded that the respondent was negligent on the 

Monday following the accident after again speaking with 

Mr. Powers, Mr. Barton, and Mr. Radabaugh, and with his supervisor and MSHA's chief of engineering services (Tr. 44). 

Mr. Shriver confirmed that the prior citation issued by 

Inspector Fetty was one of the factors on which he based his 

unwarrantable failure finding, and that the other factor was the 

fact that Mr. Barton, the respondent's project engineer, was 

watching Mr. Radabaugh bring gravel under the high voltage line 

(Tr. 44). Mr. Shriver acknowledged that Mr. Fetty•s prior citation concerned one of the respondent's trucks operating in the 

mine refuse area, and he assumed that the driver was employed by 

the respondent and under the control of one of its supervisors. 

He believed that both situations were "similar enough" because 

once the respondent was on notice of the danger of a truck 

getting into a powerline it should have been alerted by the prior 

citation and taken effective steps to preclude this from happening again (Tr. 45). 

Mr. Shriver acknowledged that he was aware of the fact that 

the general contractor's employee, Michael Powers, was directly 

supervising the hauling and dumping of gravel, and that Radabaugh 

Trucking was the subcontractor hired directly by the general 

contractor (Tr. 46). Mr. Shriver confirmed that Mr. Radabaugh 

told him that he had been involved in a prior incident of contacting a high tension line with his truck, and that he knew he 

should not leave his truck when such contact is made (Tr. 47). 

1602 
Mr. Shriver defined an unwarrantable failure as follows: "it 

is aggravated negligence or conduct on the part of the operator. 

I think the question of repeat violations enters into it and 

knowing that something occurred and failing to take some effective action to stop an accident" (Tr. 48). 

In response to further questions, Mr. Shriver stated that 

the powerline in question was approximately 27 feet 4 inches 

above the ground, and that the height of the truck bed when fully 

raised was 24-1/2 feet. The neutral wire was 4 to 5 feet under 

the other wires, and the overhang of the front of the truck bed 

hooked the neutral wire. The neutral wire is not considered a 

high voltage wire because it is basically at ground potential and 

carries no voltage. However, the bed of the truck, when it is 

fully raised, would contact the neutral wire, and if it did, it 

would be within 10 feet of the high voltage line. If the truck 

bed had not been raised, it would not have contacted the neutral 

wire, and other trucks had already passed under the wires (Tr. 

53-54). 

Mr. Shriver confirmed that the instructions to Mr. Radabaugh 

not to go beyond the footbridge were given so that he would not 

be within 10 feet of the powerline. He had no reason to believe 

that the instructions were not given, and Mr. Radabaugh admitted 

that he was so instructed (Tr. 56). With regard to Mr. Petty's 

prior citation, Mr. Shriver confirmed that it did not involve any 

truck contact with a powerline, and that the trucks wer'? simply 

within 10 feet of a high voltage line (Tr. 56). A copy of this 

prior citation, (exhibit P-8), reflects that the cited trucks 

were parked in a raised position directly under energized high 

voltage transmission lines near the refuse bin, and the citation 

is a section 104(a) "S&S" citation, with a moderate negligence 

finding (Tr. 58). 

Mr. Shriver confirmed that the height of the high voltage 

line itself was in compliance with the required standard, and if 

a truck had driven under it without the bed raised, there would 

be no chance of contact with the wire, and it would be in compliance. However, in the instant case, the truck, with its bed 

raised, contacted the neutral wire and pulled it down, causing 

the two poles supporting the high voltage lines to come together 

in "a looped position," and they contacted the truck. If the 

raised truck bed had pulled down only the neutral wire, without 

causing the tires to blow out, a citation would still have issued 

because the truck bed which hooked the neutral line would have 

been within 5 feet of the energized powerline, and the standard 

requires that equipment not be within 10 feet of such a powerline 

(Tr. 60-61) . 

1603 
Respondent's Testimony and Evidence 

Michael L. Powers testified that he is employed by Coal 

Field Services, and that he was the field work supervisor at the 

site at the time of the accident. He confirmed that Coal Field 

was the general contractor of the project, under contract with 

the respondent. He stated that all contractor employees working 

on the project were hazard trained on the first day they were on 

the job, and he identified copies of the "hazard training slips" 

for the employees (Tr. 76; exhibits R-1-B, c, and D). He confirmed that Coal Field hired Radabaugh Trucking to haul and dump 

gravel at the site, and also hired c. W. Stickley to do the 

actual grading work. He was in direct control, and supervised 

the work of Radabaugh Trucking. Mr. Barton came to the site to 

make sure that the work was being done in conformance with the 

contract specifications, and he occasionally came to the site 

three or four times a day. The truckers employed by Radabaugh 

did not leave their vehicles at any time while at the site, and 

the respondent advised Mr. Powers that they were not required to 

be hazard trained because they only came to the site to dump 

gravel and would leave (Tr. 76-78). 

Mr. Powers stated that he was serving as the truck spotter, 

and that he instructed the drivers where they were to dump their 

gravel loads each time they came to the site. He told them to 

watch for any powerlines, and remained behind the trucks and used 

hand signals to show tnem where to dump and how much to dump (Tr. 

78-79). He estimated that the powerlines were located approximately 10 to 15 feet past the end of the foot bridge, and he 

described how the incident occurred (Tr. 80-83). He specifically 

told Mr. Radabaugh not to go past the footbridge, and that one of 

the other drivers called Mr. Radabaugh by radio and told him that 

he was getting too close to the powerlines. Mr. Powers stated 

that he was using hand signals in an attempt to stop 

Mr. Radabaugh from moving further, but instead of stopping, he 

continued to move his truck forward, and as he did, the truck bed 

hooked the neutral line, bringing the poles together. 

Mr. Radabaugh told him that he knew better than to attempt to 

jump from the truck after it contacted the wires because he had 

previously contacted some powerlines with his truck "on a highway 

somewhere around Fairmont" (Tr. 85). 

Mr. Powers confirmed that Coal Field Services has its own 

MSHA I.D. number, and it was his understanding that MSHA policy 

does not require hazard training for pickup and delivery drivers, 

and that only those drivers who were at the site and out of their 

trucks were required to be trained (Tr. 86). He stated that 

Mr. Barton had visited the site on two occasions on the morning 

of the accident "to check to see how things were going," and came 

out again before lunch to ask him to have dinner with him (Tr. 

87) • 

1604 
On cross-examination, Mr. Powers stated that prior to the 

accident, Mr. Barton came to the site four or five times a day to 

check the progress of the work and to see if the contract was 

being followed. They discussed safety practices on quite a few 

occasions, and Coal Field Services conducted its own safety 

meetings when it had people at the site (Tr. 89, 91). Mr. Powers 

explained the procedures for dumping and spreading the gravel at 

the time of the accident, and he confirmed that when he was 

preparing to start the project he did not gather any data as to 

how high the voltage lines were from the ground (Tr. 92-95). He 

confirmed that the first three or four trucks which preceded 

Mr. Radabaugh backed under the powerlines, and as they started 

forward, they opened their truck gates, and raised their truck 

beds as they traveled away from the lines. None of the other 

trucks contacted the neutral powerline and there was ample room 

to clear the lines over the neutral line (Tr. 98). 

Mr. Powers confirmed that he told Mr. Radabaugh not to go 

beyond the footbridge because of the powerlines, and because of 

other transformer lines in the area. He stated that he carefully 

maneuvered Mr. Radabaugh away from the transformers, started him 

in the other direction toward the footbridge, but told him not to 

go past tqe footbridge where. it was necessary for him to back up 

because there was no room to turn around. He stated that 

Mr. Radabaugh told him that he went beyond the footbridge because 

he was distracted by the other driver who was yelling at him and 

that he lost contact with him while he was signalling him to stop 

and had his head out of the window trying to determine the location of the powerline (Tr. 99). 

Mr. Powers stated that he had prior experience working 

around overhead powerlines. He confirmed that he knew how high 

the lines were above the truck beds, and how much the beds could 

be raised to stay away from them and stay outside of the 10 foot 

minimum distance required by the standard, but he did not know 

the distance between the neutral line and the other lines. He 

knew by "instinct" that the trucks would clear the wires by 

backing in and using the reverse spreading procedure, and he 

confirmed that he did not discuss the powerlines with Mr. Barton 

before the accident while he was at the site (Tr. 102). He 

confirmed that Coal Field did not employ any of the truckers 

hauling gravel (Tr. 105). 

Robert W. Radabaugh testified that he is employed by 

Radabaugh Trucking, and that it is owned by his parents. He 

confirmed that he was operating the truck when it contacted the 

high voltage lines on May 19, 1989, and that he was hauling 

limestone that day for c. w. Stickley, a subcontractor of Coal 

Field Services. Mr. Powers was instructing him where to dump his 

load op that day, and was serving as his truck "spotter." 

Mr. Radabaugh stated that he backed into the area where he 

started to dump his load, and that Mr. Powers instructed him "to 

1605 
go toward the bridge and spread it as far as it would go" (Tr. 

114). He did not recall that Mr. Powers told him not to go 

beyond the footbridge, but that he did tell him "to be careful, 

there are wires everywhere" when he made his first trip to the 

job site that morning (Tr. 114). He denied that Mr. Powers was 

giving him hand signals or directing him where to dump the 

gravel, and that Mr. Powers was behind his truck when he began 

spreading gravel. 

Mr. Radabaugh stated that Mr. Powers backed him into the 

area where he started to dump his gravel load, and told him "to 

go on." Since he was spreading gravel to a depth of 4 to 

6 inches, Mr. Radabaugh believed that he would have traveled 

approximately 120 to 180 feet, and that during this time, it 

would have been impossible for him to see Mr. Powers in his 

mirror when he first started to move out of the area where he had 

backed in. At the same instant that he felt the neutral line 

catch his truck, he heard another driver calling him over the 

radio telling him that he was into the power wires (Tr. 116). 

Mr. Radabaugh denied that he had directly contacted a powerline with his truck on a prior occasion, and stated that he has 

had "experience with wires before" while spreading asphalt, and 

that he was "in the machine, and the power arced from the wire to 

my bed." The individual who was on the machine was shocked and 

his feet were burned, and after seeing the arc, Mr. Radabaugh 

drove his truck out and dumped the asphalt, and "saved the man's 

life" (Tr. 117). Mr. Radabaugh confirmed that he was driving the 

truck when this incident occurred. 

On cross-examination, Mr. Radabaugh stated that he had made 

a prior trip to the site during the morning spreading gravel on a 

parking lot, and that Mr. Powers was directing him where to start 

and where to go to spread his loads, and that he asked Mr. Powers 

to give him signals if he were spreading the gravel to thick or 

too thin (Tr. 120). He stated that when he "felt" that he was in 

the neutral wire at the time the other driver alerted him, "the 

first thing I did was to make a quick look to see if the wire was 

big enough that I could break it" and that he had no indication 

at that time that there was power in the wire or that it had 

arced. When he saw that he would not break the wire, he looked 

to both sides and put the truck in reverse, and when he looked 

into his mirror, he saw Mr. Powers running up behind him motioning for him to stop, and that he did. Mr. Radabaugh denied that 

he was aware of the powerlines before starting to move forward, 

and the last instructions that he heard from Mr. Powers was "to 

go toward the bridge as far as the gravel will go" (Tr. 121). He 

confirmed that he was standing up on his truck watching to see if 

the truck would empty by the time he got to the downgrade or bank 

(Tr. 123) . 

1606 
Mr. Radabaugh confirmed that he appealed the citation served 

on Radabaugh Trucking because he disagreed with the assertion 

that he had acknowledged that Mr. Powers told him not to go 

beyond the footbridge, but that his father decided to pay the 

civil penalty assessment because "it was not worth missing 

another day's work." Mr. Radabaugh denied that he ever told 

Inspector Shriver that he received instructions not to pass the 

bridge, and he stated that he had not received any such 

instruction (Tr. 128). 

Mr. Powers was recalled by the respondent in rebuttal, and 

he stated that he accompanied the Radabaugh Trucking drivers with 

each load and gave them directions and hand signals once they 

started to spread their load, and that they were under his control at all times. The only trucks that he did not stay close to 

were those which were in an open area where "there was nothing 

they could get into," and he let them know when their trucks were 

empty. He reiterated that he stayed to the rear and left of 

Mr. Radabaugh at all times, and that he could see his face in the 

truck mirror while he was watching him. Mr. Powers further 

explained Mr. Radabaugh's movements, and he confirmed that 

Mr. Radabaugh acknowledged that he was told where to stop during 

the interview with Inspector Shriver and a state inspector, and 

in the presence of Mr. Barton (Tr. 133-141). 

James Barton, testified that he was employed by American 

Electric Power, as a civil engineer in its design and construction group, and that he holds a B.S. degree in mining engineering 

and has served as a mining engineer and as a strip and surface 

foreman in West Virginia and Ohio. He stated that his duties as 

the project engineer for the work being performed for the respondent on May 19, 1989, entailed assuring that the contract specifications for the quality of the work being performed were being 

followed, and that he was there that day to oversee the remainder 

of the surfacing project. He confirmed that Coai Field Services 

was hired as the general contractor for the work, and that the 

work was being supervised by Coal Field's employees, and he 

identified the contract provision in this regard (Tr. 143-147; 

exhibit R-1-(f)). The contract called for Coal Field to insure 

that the work was completed in a safe manner, including the work 

of subcontractors, and that Coal Field was responsible for 

enforcing all applicable safety laws (Tr. 148-149). 

Mr. Barton stated that he maintained no control over the 

procedures or manner in which the gravel was being hauled, 

dumped, or spread by Radabaugh Trucking, and that Radabaugh 

Trucking was not hired by the respondent to do the work (Tr. 

149). He confirmed that he observed three to five gravel trucks 

on the morning of the accident in order to insure whether the 

proper amount of gravel was being spread, and that the trucks 

were under the control of Mr. Powers by means of hand and verbal 

1607 
communication. He stated that he did not see Mr. Powers directing Mr. Radabaugh's truck and was paying no particular attention 

to it because he was in another area. He did not see 

Mr. Radabaugh's truck contact the powerline, but when it did, he 

turned and saw that his truck had contacted the wires, and heard 

the "electrical shorting sound" (Tr. 149-152). 

Mr. Barton stated that he spoke with Inspector Shriver 

regarding the incident on May 19, 1989, but he could not recall 

whether the inspector informed him that the respondent would be 

held liable or negligent for the incident. He confirmed that he 

was not concerned about the manner in which the work was being 

done because it appeared that the dumping and spreading of the 

gravel was being controlled by Mr. Powers, and the drivers were 

complying with his hand signals (Tr. 154). He confirmed that in 

·the event he observed any drivers engaging in any unsafe acts he 

had the authority to put a stop to it (Tr. 155). 

On cross-examination, Mr. Barton confirmed that the respondent is a subsidiary of American Electric Power, and that he was 

present at the mine site for approximately a week. During that 

week, he observed and saw to it that safety standards were met, 

but he did not meet with any contractor employee to discuss any 

measures to be taken to insure that the gravel would be spread in 

a safe manner. He confirmed that he went to the site on the 

morning of the incident to see how the job was progressing and to 

have lunch with Mr. Powers. He confirmed that he was concerned 

that elevated trucks would be used around high powerlines, but 

trusted the contractor because the work was being done in a very 

controlled manner. He did not provide the contractor with any 

data concerning the height of the powerlines, and this data was 

not available to him even though he was the direct contact representative between the respondent and the contractor (Tr. 

158-159). 

Mr. Barton stated that since the trucks were under the 

control of each driver, he would expect the driver to visually 

look out for the powerlines. He believed that the accident 

resulted from a failure in communications, and that short of 

being the direct supervisor over the job, he could not be there 

at all times. In hindsight, he agreed that if he knew that the 

trucks could not clear the powerlines, the gravel may have been 

spread in a different manner, and he further agreed that the 

contractor should alert the drivers to stay clear of the lines 

(Tr. 161) . 

Larry G. Massey testified that he was employed by the 

respondent as the mine staff electrical engineer. He confirmed 

that he investigated the incident in question and spoke with 

Mr. Radabaugh. He stated that Mr. Radabaugh told him that he had 

contacted the power wires and did not leave his truck after 

making contact because "he had got into high voltage lines before 

1608 
at another time" (Tr. 163). Mr. Massey confirmed that he spoke 

with Inspector Shriver on the day of the incident, and that at no 

time did Mr. Shriver indicate that the respondent would be held 

liable for the incident. When he again spoke with Mr. Shriver on 

the Monday following the incident, Mr. Shriver informed him that 

he issued the unwarrantable failure order to the respondent 

because the incident occurred on mine property and it was the 

total responsibility of the respondent. Mr. Shriver also 

informed him that the incident was similar to a prior violation 

issued by Inspector Fetty (Tr. 164). 

Paul s. Zanussi, testified that he was employed in the 

respondent's safety department as an accident prevention officer, 

and that he became aware of the incident when he received a 

telephone call from the superintendent of engineering. He confirmed that he investigated the incident, and he described what 

he observed when he arrived at the scene shortly after the incident. He confirmed that the footbridge in question was not 

located directly under the overhead powerlines, and he estimated 

that it was located approximately 10 feet away (Tr. 166-168). 

Mr. Zanussi confirmed that the inspector did not issue any 

order to the respondent on the day of the incident, but that the 

contractor received an order that day, and that the inspector 

told Mr. Zuleski, the respondent's mine safety and health manager, that he decided to issue an order to the contractor (Tr. 

169-170). Mr. Zanussi stated that it was his understanding that 

the contractor was taking responsible precautions and had a 

spotter watching the truck and that the drivers knew of the 

dangers and their responsibilities (Tr. 175). Mr. Zanussi confirmed that no one from the mine safety department was assigned 

to be at the job site to insure that the work was being done 

safely, and that he received no instructions to visit the site 

(Tr. 177). 

Inspector Shriver was called in rebuttal by the petitioner, 

and he stated that on the basis of his diagram of the accident 

scene, and Mr. Zanussi's testimony that the footbridge was 

10 feet in front of the neutral overhead wire, if Mr. Radabaugh 

had stopped his truck at the point where he looked out of the 

window of his truck, he would have been within 10 feet of the 

phase conductor. If Mr. Radabaugh had stopped his truck "as he 

was driving, right by the bridge," Mr. Shriver still believed 

that his elevated truck bed would be within 10 feet of the wire 

(Tr. 179) . 

on cross-examination, Mr. Shriver stated that he was aware 

of no MSHA regulations requiring that plans or prints be made 

available on the job site in question in this case. He confirmed 

that his inspection notes confirm that Mr. Powers told him that 

he instructed Mr. Radabaugh not to go past the footbridge (Tr. 

183) . He again confirmed that he. issued "unwarrantable failure 

1609 
type papers" to Radabaugh Trucking, Coal Field Services, and the 

respondent (Tr. 185). He explained his reasons for doing so as 

follows at (Tr. 186-188): 

Q. How was the driver here, Mr. Radabaugh, guilty of 

aggravated conduct? 

A. According. to statements made to me by other 

parties, he had been told not to go past the bridge, 

and on Monday he conceded he had gone past it. You 

know, I don't know whether I caught him cold, or what, 

but he had just dismounted from the truck and 

Q. And he confirmed that he had been told? 

A. Right. He later said at a conference on the citation that he had not really said that. 

Q. The contractor here, how was the contractor guilty 

of aggravated conduct? 

A. The general contractor, while having the people, 

the trucks, travel under high voltage lines, he did not 

put up an effective barrier to prevent him from going 

past it. 

Q. So, if the contractor didn't prevent the driver 

from doing it, and if the driver himself did it knowing 

or flaunting the instruction not to do it, and both of 

that is aggravated conduct, how does Martinka come on 

the receiving end of aggravated conduct also? 

A. Well, again, Mr. Barton, the project engineer, on 

Friday -- and I believe again on Monday, I talked to 

him on Monday -- stated that he had watched these 

trucks go through there and he had watched this 

particular truck go through, and he had made no effort 

to ensure that it was low enough to get under, or the 

power lines were high enough for them to get under, 

without trouble. 

The second thing was that he as the project 

engineer did not have any knowledge of how high the 

line was and therefore from my standing there, looking 

at it, it was very difficult for me to tell how high 

the line was. 

I would hesitate to tell a truck driver that he 

could drive that through there with his bed down. It 

is highly misleading when you look up if you don't 

actually know how high the line is. It is very risky 

1610 
to go under it. And also, he had no knowledge of how 

high the truck beds were. · 

The third was Mr. Petty's citation on a similar 

violation for having the refuse trucks under this same 

circuit; not the same identical line. 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 77.807-3, which provides as follows: 

When any part of any equipment operated on the surf ace 

of any coal mine is required to pass under or by any 

energized high-voltage powerline and the clearance 

between such equipment and powerline is less than that 

specified in section 77.807-2 for booms and masts, such 

powerlines shall be deenergized or other precautions 

shall be taken. (emphasis added). 

The respondent does not dispute the fact that the raised bed 

of the truck which was operated by Mr. Radabaugh on its mine 

property did in fact come within 10 feet of an energized powerline. Indeed, the truck bed contacted the wire, causing an 

electrical short circuit and arcing, and the contact damaged the 

truck tires. The inspector concluded that a violation of section 

77.807-3, occurred because the raised truck bed contacted the 

overhead energized powerline causing considerable damage to the 

truck. Since the clearance between the raised truck bed and the 

powerline was less than the 10 feet clearance mandated by section 

77.807-2, and since the powerline was not deenergized and no 

other precautions to avoid contact were taken, as required by 

section 77.807-3, the inspector found a violation of that 

standard. 

Section 77.807-3, requires that certain clearance distances 

be maintained when any part of any equipment operated on the 

surface of any coal mine is required to pass under or by any 

energized high voltage powerline. Section 77.807-2, which is 

incorporated by reference as part of section 77.807-3, requires a 

10 foot clearance or separation between the booms and masts of 

equipment and an energized overhead powerline. I conclude and 

find that the cited truck in question was a piece of "equipment" 

within the meaning of sections 77.807-2, and 77-807-3. I further 

conclude and find that the device used to raise the truck bed was 

a "boom or mast" within the meaning of section 77-807-2, and that 

the raised truck bed which contacted the powerilire was "part" of 

the truck, and within the meaning of section 77.807-3. 

1611 
Although the parties have not directly raised the issue as 

to whether or not the truck was required to pass under the overhead energized powerline, the respondent takes the position that 

the truck driver was specifically instructed not to go beyond the 

area of a footbridge in the proximity of the powerlines. The 

evidence establishes that Mr. Powers, the individual who was 

serving as a truck spotter, and who was directing the traffic 

flow and the dumping and spreading of' the gravel, was aware of 

the powerlines and had instructed the drivers to watch out for 

them. Mr. Powers relied on his visual observation of the powerline and his "instinct" that the trucks would clear the power 

wires by backing under the wires and using a "reverse spreading 

procedure." As a result of the traffic pattern utilized to dump 

and spread the gravel under the control of Mr. Powers, three or 

four trucks which proceeded Mr. Radabaugh's truck backed under 

the power wires, and Mr. Powers instructed them to begin raising 

their truck beds as they traveled away from the wires. 

Mr. Radabaugh testified that following Mr. Powers' instructions, 

he backed his truck up, and as he proceeded in a forward direction to spread his gravel load, he contacted the wire after 

traveling approximately 120 to 180 feet. Under all of these 

circumstances, I conclude and find that in the process of spreading the gravel, all of the aforementioned trucks, including 

Mr. Radabaugh's, were required to pass under or by energized 

overhead power wires. 

The respondent's defense to the violation focuses on the 

unwarrantable failure finding made by the inspector, the respondent's alleged negligence for the violation, and whether or not a 

production operator, such as the respondent, may properly be 

cited for a violation attributable to an independent contractor. 

The responderlt takes the position that it should not be held 

liable for the violation of its independent contractor because it 

did not contribute to the violation, or let it exist, none of its 

miners were exposed to any hazard, and it retained no control or 

supervision over the contractor's work or the alleged violative 

condition. In support of its arguments, the respondent cites the 

Commission's decision in Cathedral Bluffs Shale Oil Company, 

6 FMSHRC 1871 (August 1984), and a court decision in Brock v. 

Cathedral Bluffs Shale Oil Company, 796 F.2d 553 (D.C. Cir. 

1986). The respondent maintains that the facts and evidence 

presented in this case do not support MSHA's position that it was 

properly cited pursuant to the Act, as well as MSHA's independent 

contractor regulations and policies. 

In the Cathedral Bluffs Shale Oil Company case, the 

Commission affirmed a Judge's decision vacating a citation issued 

to a production operator on the ground that MSHA improperly 

applied its newly promulgated and adopted independent contractor 

enforcement policy. The Commission found no credible evidence in 

that case to support any conclusion that the production operator's employees were exposed to any hazard as a result of the 

1612 
violation, or that the operator exercised sufficient control over 

the work activities of its independent contractor so as to establish a link or nexus with the contractor's violation. MSHA 

appealed the decision, Brock v. Cathedral Bluffs Shale Oil 

Company, and the Court reversed the Commission's decision, and 

held that the Commission improperly regarded MSHA's general 

independent contractor enforcement policy as a regulation which 

MSHA was required strictly to observe. The Court clearly recognized that MSHA retained broad discretion to cite a mine operator, as well as contractors, for violations, and stated that 

"the statement here in question pertains to an agency's exercise 

of its enforcement discretion - an area in which the courts have 

traditionally been most reluctant to interfere," 796 F.2d 538, 

and the cases cited therein. The court further stated as follows 

at 796 F.2d 538: 

* * * * * * 

[W]e see no basis for overturning the Secretary's 

judgment that his independent contractor enforcement 

guidelines do not constitute a binding, substantive 

regulation. The language of the guidelines is replete 

with indications that the Secretary retained his discretion to cite production-operators as he saw fit. 

* 

The statement characterizes itself as merely a "general 

policy" to "be used by inspectors as guidance in making 

individual enforcement decisions." At its very outset 

it warns production-operators that nothing it contains 

should be regarded as altering their basic compliance 

responsibilities: 

Production-operators are subject to all provisions of the Act, standards and regulations 

which are applicable to their mining operation. This overall compliance responsibility 

of production-operators includes assuring 

compliance with the standards and regulations 

which apply to work being performed by independent contractors at the mine. As a 

result, independent contractors and production-operators both are responsible for compliance with the provisions of the Act, 

standards and regulations applicable to the 

work being performed by independent 

contractors. (Emphasis added). 

It seems clear to me that production operators are jointly 

and severally liable for violations involving independent contractors at their mines. Cyprus Industrial Minerals Co. v. 

FMSHRC, 664 F.2d 1116 (9th Cir. 1981). It is also clear that a 

mine owner-operator is liable for the independent contractor's 

safety violations without regard to the owner's fault. See: 

1613 
Consolidation Coal Company, 10 FMSHRC 745, 749 (June 1988), and 

the decisions cited therein by Judge Weisberger. The Commission 

affirmed Judge Weisberger's findings that MSHA's discretion was 

not abused in citing both the production operator and its contractor, and took note of the Court's decision in Brock v. 

Cathedral Bluffs Shale Oil Co., supra, with respect to MSHA's 

wide enforcement discretion, 11 FMSHRC 1439, 1443 (August 1989). 

There is no evidence in this case that any employee of the 

respondent was exposed to the-hazard presented by the violation. 

The work was being conducted and directly supervised by the 

contractor's supervisor, Michael Powers, pursuant to a contractor 

with the respondent. The respondent points out it did not hire 

the contractor and sub-contractor employees performing the work, 

and only "monitored the contractor's work performance." 

Mr. Barton testified that pursuant to the contract, the contractor was responsible for the safe completion of the work as well 

as the enforcement of all applicable safety laws. Altho~gh not 

specifically raised by the respondent as an issue, I reject any 

notion that a production operator may contract away or delegate 

its statutory duty to prevent safety hazards or violations which 

may occur on its property or its strict liability as established 

by the Act. 

MSHA takes the position that as an owner-operator, the 

respondent is charged with the responsibility of assuring 

contractor compliance with the safety requirements of the Act and 

its safety regulations, and that the respondent may be cited for 

the aots and omissions of its contractor. MSHA relies on its 

independent contractor enforcement policy guidelines which state 

that it is appropriate to cite the owner-operator as well as the 

contractor when the "· .• production-operator has contributed by 

either an act or an omission to the occurrence of a violation in 

the course of an independent contractor's work or ... when the 

production operator has either contributed to the continued 

existence of a violation committed by an independent 

contractor. • . " . 

MSHA maintains that the respondent contributed to the violation by failing to provide wire height information to its 

contractor, by failing to meet with the contractor to systematically enforce the safety provisions of its contract with the 

contractor, and by wrongly advising the contractor that it did 

not have to train its drivers. With regard to Mr. Barton's role 

in connection with the violation, MSHA points out that the work 

area in question was an electrical substation and that a high 

voltage line accident was clearly the most likely and foreseeable 

hazard faced by the drivers. Since -Mr. Barton was an employee of 

American Electric Power, and was a trained and experienced civil 

and mining engineer, MSHA believes that he should be held to a 

higher standard of prudence and care than a regular mine supervisor or a lay person. 

1614 
MSHA further argues that Mr. Barton had the responsibility 

of overseeing the contract performance of the contractor retained 

by the respondent, and that the contract required the work to be 

performed in a safe manner under competent supervision. MSHA 

asserts that Mr. Barton apparently did nothing to assure contractor compliance with this contract provision, did not meet with 

the contractor regarding safety measures to be taken, and did not 

ascertain whether the contractor had familiarity with wire 

heights or truck bed heights, or whether it was familiar with the 

hazard inherent in the job. MSHA points out that Mr. Barton 

apparently never advised Mr. Powers that he was contractually 

responsible for the safety of the project, and that Mr. Powers 

testified that he was not familiar with its safety provisions. 

Finally, MSHA suggests that the respondent must bear derivative liability for the acts or omission of Mr. Powers. Since the 

contractor was apparently delegated the sole responsibility for 

safety considerations pursuant to the contract, MSHA concludes 

that the contractor became the respondent's agent as that term is 

used in section 3(e) of the Act and stands in the shoes of its• 

directly employed supervisory agents, and is accountable for the 

acts or omissions of Mr. Powers. 

In the instant case, the inspector cited and found three 

separate entities who he believed were responsible for the violation in question. In addition to the respondent, he also issued 

section 104(d) citations to the respondent's general contractor 

(Coal Fuel Services), and the contractor's sub-contractor 

(Radabaugh Trucking Company). The inspector explained his 

reasons for citing all three of these parties.. His reasons for 

citing the respondent are summarized as follows: 

The violation occurred on the respondent's mine 

property. 

The respondent's project engineer, James Barton, 

was at the work site and observed the trucks 

(including Mr. Radabaugh's truck) spreading gravel 

under the powerlines, and made no effort to ascertain the clearance distances between the trucks 

and the power wires. 

The respondent's electrical prints, which were 

available at the site, did not reflect the height 

of the power wires above the ground, and 

Mr. Barton did not know the height of the power 

wires, how close the trucks would drive to the 

power wires, and did not know the height of the 

truck bed when it was in a fully raised position. 

1615 
The respondent was previously cited for a violation of section 77.807-3, on February 2, 1989, for 

failing to maintain a 10-foot clearance between 

its trucks which were parked under energized highvoltage lines which was part of the "electrical 

circuit" involved in the instant matter. The 

inspector believed that this prior citation should 

have alerted the respondent' to be aware of the 

potential hazard and take appropriate action. 

The lack of training for the truck driver 

(Radabaugh) whose truck contacted the overhead 

power wires in this case 

Mr. Barton confirmed that he was present at the work site 

.for approximately a week during the course of the work being 

performed by the contractor. Contrary to the respondent's assertions that "there is no testimonial evidence establishing the 

duration of the visits nor what specifically was observed" 

(pgs. 9-10, posthearing brief), Mr. Barton testified that one of 

the reasons for his visits during the week was to see to it that 

safety standards were met, and he confirmed that he was at the 

site on the morning of the accident and observed three or four 

trucks spreading gravel under the direction of Mr. Powers. 

Although Mr. Barton denied that he observed Mr. Powers directing 

Mr. Radabaugh's truck, and stated that he did see the truck 

contact the power wire because he was in "another area," he was 

apparently close to the scene of the accident because at the 

moment of contact, he turned and saw the truck and heard the 

"electrical shorting sound." Mr. Powers testified that prior to 

the accident Mr. Barton came to the site four or five times a day 

to check the'progress of the work, and that he had visited the 

site on two occasions on the morning of the accident to "see how 

things were going" and returned again that day to ask him to have 

lunch or dinner with him. 

Although Mr. Powers testified that he and Mr. Barton discussed "safety practices" during Mr. Barton's visits to the work 

site, he admitted that they did not discuss the powerlines during 

any of Mr. Barton's visits prior to the accident. Mr. Barton 

testified that during the week of his visits to the work site to 

observe whether all safety standards were met, he did not meet 

with any contractor personnel to discuss measures for insuring 

that the gravel was spread in a safe manner, and although he had 

observed the trucks coming and going, and spreading the gravel, 

he was not concerned about the methods being used because he 

believed that Mr. Powers had matters under control. 

Mr. Barton .confirmed that he was concerned that elevated 

trucks were being used around high powerlines, and Mr. Powers was 

apparently also concerned because he testified that he instructed 

1616 
the drivers to "watch out" for the overhe~d wires. Notwithstanding these concerns, Mr. Barton and Mr. Powers never discussed the 

hazards of trucks operating at the electrical substation area 

where the presence of overhead energized powerlines was readily 

obvious and apparent. Further, even though electrical prints and 

drawings were subsequently found by the inspector and Mr. Barton 

in a contractor's trailer, they did not include any information 

with respect to the height of the powerlines above the ground. 

Although he was acting as the respondent's direct contact representative with the contractor, Mr. Barton was ignorant of the 

height of the powerlines, and he apparently made no effort to 

obtain this information and communicate it to the contractor. 

Mr. Barton expected each truck driver to visually look out 

for the overhead power wires, and Mr. Powers relied on his 

"instinct" and the "reverse spreading" p:r:ocedure as a means of 

preventing a truck from contracting a wire. I conclude and find 

that the failure by Mr. Barton and Mr. Powers to make any 

meaningful determination as to the safe working parameters for 

the trucks which were working in a rather confined electrical 

substation area around overhead powerlines, or to specifically 

determine the height of the overhead power wires, prior to the 

beginning of the work in question, and to discuss and exchange 

such information with each other, constituted qmissions on their 

part which contributed to the violation. 

Respondent's safety representative, Paul Zanussi, testified 

that he was never instructed to be at the site, and that no one 

from the safety department was assigned to be present to insure 

that the work was done in a safe manner. While there is no 

evidence that Mr. Barton was aware of the previous citation 

issued some 3 months earlier for a violation of the same standard 

cited in this case, I believe that one may reasonably conclude 

that the safety department was aware of it. Although the presence of a safety representative may not be required on a daily 

basis at the site where a contractor is performing work, given 

the fact that Mr~Barton was concerned about the trucks working 

around overhead powerlines, and the fact that the respondent had 

recently been charged with a similar violation, I believe that it 

is not unreasonable to expect at least some communication between 

the respondent's safety and engineering departments and the 

contractor to insure that the work was being done in a safe 

manner and that truckers were not exposed to potential hazards. 

As noted earlier, the respondent may not absolve itself of all of 

its statutory safety responsibilities by simply "contracting them 

out" to a contractor. 

Although Mr. Barton took the position that the contractor 

was responsible for insuring that the work was performed in a 

safe manner, and was responsible for enforcing all applicable 

safety laws, he conceded that he had the authority to act or 

intervene if he observed any drivers engaging in any unsafe acts. 

1617 
He also conceded that part of his responsibilities during his 

site visits was to insure that all safety standards were met, and 

in "hindsight," he agreed that if he knew that the trucks could 

not clear the powerlines, the gravel would have been spread in a 

different manner. It seems to me that if Mr. Barton had the 

authority in "hindsight" to dictate the manner in which the 

gravel was spread if he believed that the spreading methods used 

exposed the truck drivers to a hazard of contacting the overhead 

powerlines, he also had that authority prior to the time of the 

accident. Under all of these circumstances, the respondent's 

suggestion that it had no safety responsibility for the work 

being performed by the contractor, and that Mr. Barton's presence 

at the work site was for the limited or sole purpose of insuring 

contract compliance with only the job specifications is rejected. 

I conclude and find that Mr. Barton had an obligation and 

duty, which were inherent in his position as the project engineer 

on the job, to insure that the contractor work being performed in 

and around the electrical substation area which was located on 

the respondent's property, an area which was rather confined, and 

where energized overhead powerlines and other electrical equipment were located, was done in a safe manner. I conclude and 

find that Mr. Barton's failure in this regard constituted 

omissions which contributed to the violation. 

In view of the foregoing findings and conclusions, I conclude and find that MSHA has established a violation by a preponderance of the credible and probative evidence adduced in this 

case. I also conclude and find that the respondent was properly 

cited in this case, that the inspector's reasons for citing the 

respondent were reasonable and proper in the circumstances and 

were in compliance with MSHA's independent contractor policies 

and guidelines, and that the inspector did not act arbitrarily by 

citing the respondent as well as the contractor and its subcontractor. Accordingly, the contested violation IS AFFIRMED. 

Significant and Substantial Violation 

The parties stipulated that in the event the violation is 

affirmed, it was indeed a significant and substantial violation. 

Accordingly, the inspector's finding in this regard IS AFFIRMED. 

Unwarrantable Failure Violation 

The governing definition of unwarrantable failure was 

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided 

under the 1969 Act, and it held in pertinent part as follows at 

295-96: 

In light of the foregoing, we hold that an inspector should find that a violation of any mandatory 

standard was caused by an unwarrantable failure to 

1618 
comply with such standard if he determines that the 

operator involved has failed to abatethe conditions or 

practices constituting such violation, conditions or 

practices the operator knew or should have known 

existed or which it failed to abate because of a lack 

of due diligence, or because of indifference or lack of 

reasonable care. 

In several recent decisions concerning the interpretation 

and application of the term "unwarrantable failure," the 

Commission 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." Energy 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). Referring to its prior holding in the Emery 

Mining case, the Commission stated as follows in Youghiogheny & 

Ohio, at 9 FMSHRC 2010: 

We stated that whereas negligence is conduct that 

is "inadvertent," "thoughtless" or "inattentive," 

unwarrantable conduct is conduct that is described as 

"not justifiable" or "inexcusable." Only by construing 

unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

In Emery Mining, the Commission explained the meaning of the 

phrase "unwarrantable failure" as follows at 9 FMSHRC 2001: 

We first determine the ordinary meaning of the 

phrase "unwarrantable failure." "Unwarrantable" is 

defined as "not justifiable" or "inexcusable." 

"Failure" is defined as "neglect of an assigned, 

expected, or -appropriate action. " Webster's Third New 

International Dictionary (Unabridged) 2514, 814 (1971) 

("Webster's"). Comparatively, negligence is the 

failure to use such care as a reasonably prudent and 

careful person would use and is characterized by 

"inadvertence," "thoughtlessness;" and "inattention." 

Black's Law Dictionary 930-31 (5th ed. 1979). Conduct 

that is not justifiable and inexcusable is the result 

of more than inadvertence, thoughtlessness, or 

inattention. * * * 

In my view, the direct and proximate cause of the accident 

was the result of the truck driver's failure to adhere to the 

instruction by Mr. Powers not to drive beyond the footbridge. 

Although Mr. Radabaugh denied that he was so instructed, I find 

the testimony of Mr. Powers to be more credible. In addition, 

1619 
the inspector had no reason to believe that the instructions were 

not given. Indeed, he testified that Mr. Radabaugh admitted that 

he was so instructed, and the inspector's notes made at the time 

of the incident reflect that Mr. Powers informed him that he had 

instructed Mr. Radabaugh not to go beyond the footbridge and that 

Mr. Radabaugh admitted that this was in fact the case. The 

inspector also confirmed that the reason Mr. Powers instructed 

Mr. Radabaugh not to go beyond the footbridge was in order to 

avoid contact with the powerwire, and if Mr. Radabaugh had 

complied with the instruction he would not have contacted the 

wire. Under the circumstances, I do not believe Mr. Radabaugh's 

testimony that the he was not instructed not to proceed beyond 

the footbridge. 

The evidence establishes that the incident in question was 

not the first time Mr. Radabaugh had contacted an energized power 

wire with his truck. Although Mr. Radabaugh denied that he saw 

the power wire as he proceeded away from the area where he had 

dumped gravel while under Mr. Powers' direction, he testified 

that when he truck initially made contact with the neutral wire, 

another driver alerted him to this fact. Although the neutral 

wire did not arc, and there was no indication that the wire had 

any power on it, rather than stopping his truck at that point, 

Mr. Radabaugh looked at the wire to determine whether he could 

break it, and when he determined that he could not break it, he 

put his truck in reverse, and as he backed up he saw Mr. Powers 

through his rear view mirror running toward him and motioning him 

to stop. Although Mr. Radabaugh stopped, the neutral wire which 

he initially caught with his truck bed brought the power line 

support poles together causing the neutral wire to contact the 

energized power wire and the truck. In my view, if Mr. Radabaugh 

had simply stopped his truck and not attempted to break the wire 

with his truck by moving it further, the accident may have been 

avoided. 

Inspector Shriver confirmed that in addition to the respondent, he also charged the contractor and its sub-contractor with 

unwarrantable failure violations in connection with the accident 

in question. He believed that the respondent was guilty of 

aggravated conduct because Mr. Barton informed him that he had 

observed the trucks, and in particular, Mr. Radabaugh's truck, 

travelling under the powerlines while spreading gravel, 

Mr. Barton's lack of knowledge of the height of the overhead 

wires or the height of the raised truck beds, and the prior 

citation issued by another inspector for parking trucks with 

their raised beds under the same overhead power circuit. He also 

considered Mr. Radabaugh's admission that he had received no 

training with respect to overhead powerlines. 

Although the evidence establishes that Mr. Barton observed 

the gravel trucks operating in the area of the overhead powerlines on the day of the accident, Mr. Barton testified that he 

1620 
did not observe Mr. Powers directing Mr. Radabaugh's truck and 

paid no particular attention to it because he was in another 

area. Mr. Powers testified that three or four trucks preceded 

Mr. Radabaugh and backed under the wires. Mr. Shriver's notes 

reflect that Mr. Barton told him that he had observed three or 

four loads of gravel spread in the area north of the substation 

fence, and this information was incorporated in an accident 

memorandum submitted by Mr. Shriver to MSHA's district manager on 

June 1, 1989. Although Mr. Radabaugh was spreading gravel at the 

area noted in the notes and memorandum, the information contained 

in these documents do not reflect that Mr. Barton specifically 

observed Mr. Radabaugh's truck. They simply reflect that 

Mr. Barton "watched three loads of gravel spread north of the 

substation fence" (exhibits P-5 and P-6). Mr. Radabaugh confirmed that he had made an earlier trip to the site spreading 

gravel on a parking lot. 

While it is true that Mr. Barton conceded that the trucks 

operating and spreading gravel in the area of the powerlines 

cause him some concern, his credible testimony reflects that he 

relied on the fact that Mr. Powers was serving as the truck 

spotter directing and supervising the spreading of the materials, 

and that he trusted Mr. Powers judgment that the work was being 

done in a safe manner. Mr. Powers had previous experience working around powerlines, and he cautioned each driver as they 

arrived at the site to be aware of the lines. Although I have 

concluded that Mr. Barton had a duty to communicate with the 

contractor in order to insure the availability of information 

regarding the height of the powerlines and the height of the 

raised truck beds, in the circumstances then presented, including 

the fact that Mr. Radabaugh disregarded a direct order by 

Mr. Powers not to go beyond the footbridge, I cannot conclude 

that Mr. Barton could have reasonably anticipated that 

Mr. Radabaugh would not follow instructions and place himself in 

a position to contact the powerlines. Under all of these circumstances, I conclude and find that Mr. Barton's failure to act 

when he initially observed the truck was the result of inattention rather than aggravated conduct. 

With regard to the prior citation issued by Inspector Fetty, 

I am not persuaded that this singular violation supports, or 

contributes to, a finding of aggravated conduct. The prior 

citation concerned a different factual situation, and I find no 

evidence that Mr. Barton was aware of it. 

With respect to Mr. Radabaugh's lack of training, I take 

note of the fact that the inspector did not issue any violations 

for lack of training, and I find no probative evidence that the 

respondent was required to train Mr. Radabaugh. The unrebutted 

testimony of Mr. Powers establishes that the contractor hazard 

trained its employees, and I assume that Radabaugh Trucking 

Company, who was also a contractor, had some responsibility for 

1621 
training its own drivers. Although it may .be true that the 

respondent advised Mr. Powers that the truckers employed by 

Radabaugh Trucking were not required to be trained, there is no 

evidence that Mr. Barton gave this advice, and even if he did, I 

am not convinced that the basis for this opinion was incorrect. 

Mr. Powers confirmed that the truckers did not leave their 

vehicles at any time while at the work site, and it was his 

understanding that MSHA's training policy did not require hazard 

training for pickup and delivery drivers who remain in their 

vehicles. The policy referred to by Mr. Powers, exhibit R-1, 

supports this conclusion, and I find no evidentiary basis for 

concluding that the advice given to the contractor by the respondent was other than a reasonable and good faith opinion based on 

the work being performed by contractor truckers. 

I take particular note of the fact that Mr. Shriver admitted 

that he was not familiar with MSHA's training policy and that he 

abated and terminated the violation after the respondent. stated 

that it would provide hazard training for contractor truckers, 

and that it "will ensure that contractors provide this hazard 

training to trucking subcontractors." Thus, it would appear that 

the inspector put the onus on the contractor to train its own 

subcontractors. Under all of these circumstances, I cannot 

conclude that Mr. Radabaugh's lack of training supports, or 

contributes to, a finding of aggravated conduct by the 

respondent. 

In view of the foregoing findings and conclusions, I conclude and find that the violation was a result of the respondent's inattention and failure to exercise reasonable care rather 

than aggravated conduct. Accordingly, the inspector's unwarrantable failure finding IS VACATED, and the order IS MODIFIED to a 

section 104(a) citation with significant and substantial (S&S) 

findings, and as modified, the citation IS AFFIRMED. 

Size of Business and Effect of Civil Penalty Assessment on the 

Respondent's Abili£y to Continue in Business 

I conclude and find that the respondent is a large mine 

operator and that the civil penalty assessment for the violation 

in question will not adversely affect the respondent's ability to 

continue in business. 

History of Prior Violations 

The respondent's history of prior violations, as reflected 

by an MSHA computer print-out, (exhibit P-1-a) , shows that for 

the period May 30, 1987 through May 29, 1989, the respondent paid 

$251,308 for 1,047 violations issued at the Martinka No. 1 Mine. 

one-thousand and fourteen (1,014), were for violations found to 

be significant and substantial (S&S). No prior violations of 

section 75.807-3, are noted. MSHA has not argued or suggested 

1622 
that the respondent's compliance record warrants any additional 

increases to its proposed civil penalty assessments, and I assume 

that it considered the respondent's history of compliance when 

the assessments were initially made. However, I have considered 

this compliance history in the penalty assessment which I have 

made for the violation which has been affirmed. 

Good Faith Compliance 

The record reflects that the respondent timely abated the 

violation by providing hazard training to contractors, and insuring that the contractors will provide hazard training to its 

subcontractors. I conclude and find that the respondent timely 

abated the violation in good faith. 

Negligence 

Although the record reflects that the height of the powerlines were otherwise in compliance with MSHA's regulations, I 

conclude and find that the failure by Mr. Barton or the respondent to make any determination as to the height of the raised 

truck beds operating in the area of the powerlines, or to otherwise discuss the matter with the contractor, or to communicate 

this information to the contractor in advance of the start of the 

project, constitutes a lack of reasonable care amounting to 

ordinary negligence. 

Gravity 

As noted earlier, the respondent stipulated that the violation was significant and substantial. The truck contact with the 

energized powerline caused considerable damage to the truck, and 

Mr. Radabaugh was fortunate that he was not seriously injured or 

killed. I conclude and find that the violation was serious. 

Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, and 

taking into account the requirements of section llO(i) of the 

Act, I conclude and find that a civil penalty assessment of $500 

is reasonable and appropriate for a violation of mandatory safety 

standard 30 C.F.R. § 77.807-3, as noted in the modified section 

104(a) "S&S" Citation No. 2944317, May 22, 1989. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $500 for the violation in question, and payment 

1623 
is to be made to MSHA within thirty (30) days of the date of this 

decision and order. Upon receipt of payment, this matter is 

dismissed. 

Distribution: 

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Rebecca J. Zuleski, Esq., FURBEE, AMOS, WEBB & CRITCHFIELD, 

Attorneys at Law, 5000 Hampton Center, Suite 4, Morgantown, WV 

26505 (Certified Mail) 

/fb 

1624 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 3 1990 

WESTWOOD ENERGY PROPERTIES, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner . "V. 

WESTWOOD ENERGY PROPERTIES, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

CONTEST PROCEEDINGS 

Docket Nos. PENN 88-42-R 

PENN 88-43-R 

and 

thru 

PENN 88-73-R 

PENN 88-89-R 

Refuse Culm Bank 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN a8-148 

A.C. No. 36-07888-03501 

Refuse Culm Bank 

DECISION APPROVING SETTLEMENT 

ORDER OF DISMISSAL 

Before: Judge Broderick 

By Decision issued December 20, 1989, the Commission 

remanded these cases to me to determine whether the Secretary 

properly exercised her authority to regulate the cited working 

cond.itions at the subject facility. By order issued January 22, 

1990, I granted Westwood's motion to reopen discovery and I 

extended the time for prehearing submissions. Extensive 

discovery including interrogatories, production of documents and 

a deposition was conducted between January and March 1990. 

On August 1, 1990, the Secretary filed a motion to approve a 

settlement between the parties and to dismiss these proceedings. 

The settlement agreement provides that Westwood will withdraw its 

contest proceedings and pay the $900 in civil penalties assessed 

in my decision of January 26, 1989. It further provides that 

MSHA will not assert jurisdiction over Westwood's facility in the 

future, so long as Westwood does not materially change ~he manner 

in which it processes culm as described in the Commission 

decision. If MSHA determines that a material change has occurred 

and decides to reassert its jurisdiction, it will so notify 

Westwood. Westwood does not admit MSHA's jurisdiction over any 

portion of the Westwood facility and its withdrawal of the 

1625 
notices of contest is without prejudice to its right to contest 

any future assertion of jurisdiction by MSHA. 

I have considered the motion in the light of the Commission 

Decision of December 20, 1989, and in the light of the provisions 

of section 110(i) of the Act and conclude that it should be 

approved. 

Accordingly, the settlement agreement is APPROVED, and 

Westwood is ORDERED TO PAY the sum of $900 within 30 days of the 

date of this order. 

IT IS FURTHER ORDERED that subject to the payment of the 

above penalty the captioned contest and civil penalty proceedings 

are DISMISSED. 

Distribution: 

,, -- A A k , I 

/!1 !/6 ./-I-'/~'.: T{k_,,_vz_ cf(/, 

ames A. Broderick 

' Administrative Law Judge 

Joseph Mack, III, Esq., Thorp, Reed & Armstrong, One Riverfront 

Center, Pittsburgh, PA 15222 (Certified Mail) 

Robert A. Cohen, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

slk 

1626 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

· 2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 3 1990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 89-278 

: A.C. No. 46-03805-03939 

v. 

Martinka No. 1 Mine 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Mark R. Malecki, Esq., Office of the Solicitor, 

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

the Petitioner; 

Rebecca J. Zuleski, Esq., FURBEE, AMOS, WEBB & 

CRITCHFIELD, Morgantown, West Virginia, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), 

seeking civil penalty assessments for five alleged violations of 

certain mandatory safety standards found in Parts 75 and 77, 

Title 30~ Code of_Federal Regulations. The respondent filed a 

timely answer contesting the alleged violations and a hearing was 

held in Morgantown, West Virginia. Two of the alleged violations 

were settled by the parties, one was dismissed by the petitioner, 

and testimony and evidence was taken with respect to two alleged 

violations. The parties filed posthearing briefs, and I have 

considered their arguments in the course of my adjudication of 

this matter. 

Issues 

The issues presented in this case are (1) whether the 

conditions or practices cited by the inspector constitute violations of the cited mandatory safety standards, (2) whether two of 

1627 
the alleged violations were "significant and substantial" (S&S), 

(3) whether the violations were the result of the respondent's 

unwarrantable failure to comply with the cited standards, and 

(4) the appropriate civil penalties to be assessed for the violations, taking into account the statutory civil penalty assessment 

criteria found in section llO(i) of the Act. Additional issues 

raised by the parties are disposed of in the course of this 

decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977; 

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated to the following (Tr. 7-11; exhibit 

P-1) : 

1. The respondent is the owner and operator of 

the Martinka Mine, and the operations of the mine are 

subject to the Act. 

2. The presiding judge has jurisdiction to hear 

and decide this matter. 

3. A copy of an MSHA's Proposed Assessment Data 

Sheet (~xhibit P-2) which sets forth (a) the number of 

assessed non-single penalty violations charged for the 

years 1986 through February, 1989, (b) the number of 

inspection days per month in said period and (c) the 

mine and controller tonnage for year 1988, is admitted 

for the record in this case, and the respondent has no 

facts to contradict the accuracy of this information. 

4. A copy of an MSHA computer print-out reflects 

the history of prior assessed violations issued at the 

Martinka No. 1 Mine for the period April 26, 1987 

through April 25, 1989 (exhibit P-3). 

5. The MSHA inspectors who issued the contested 

orders were acting in their official capacity when the 

orders were issued, and true copies were served on the 

respondent or its agent as required by the Act. 

1628 
6. 

diet the 

Mine has 

ran table 

Citation 

The respondent knows of no evidence to contrapeti tioner' s assertion that the Martinka No. 1 

not had a complete inspection free of unwarfailure violation since the issuance of 

No. 0859286 dated September 1, 1981. 

Discussion 

The parties settled three of the contested orders in this 

case. The remaining two orders are as follows: 

Section 104(d) (2) Order No. 3117868, May 23, 1989, cites an 

alleged violation of 30 C.F.R. § 77.404(a), and the cited condition or practice states as follows: 

Based on a complaint investigation a D-7 caterpillar dozer company number 29423 had been operated 

from 5-15-89 to 5-19-89 with two broken cat pads, which 

are part of a walkway platform on which the machine 

operators walk to mount and dismount the machine. This 

condition had been known by the foreman in charge, Jim 

Richards, and had been recorded in the machine operator's daily examiners record book on 5-16-89. 

Section 104(d) (2) Order No. 2944318, May 24, 1989, cites an 

alleged violation of 30 C.F.R. § 75.1704, and the cited condition 

or practice states as follows: 

On Bll longwall, the intake escapeway is not 

maintained to insure passage of any person, i~cluding 

disabled persons. In the crosscut just inby 

station 22031, between the track and intake entries, 

there were the following obstructions: 

(1) Ten 5-gallon cans of hydraulic oil, two 

deep 

(2) 20-pieces of belt structure 

(3) 20 belt rollers 

(4) Mandoor from stopping 

(5) Two wooden pallets 

(6) A 3' x 4' x 4' wooden crate full of pan 

line chain 

(7) Four 3/4" x 2' x 4 1 steel plates 

(8) A scoop Tire 

In the crosscut from the belt to the track, there 

was about 30 feet of water and mud 12 inches deep. One 

block outby in escapeway (outby station 22032) there 

was a water hole 40 feet long rib to rib, 12 inches 

deep, with a 2 foot drop off to water. The foreman 

stated that this crosscut was entrance to intake 

escapeway entry, and there was a green arrow escapeway 

1629 
sign hanging in track entry, pointing into this 

crosscut. 

Citation No. 2944303 was issued on 5-1-89 for 

obstructed intake escapeway on D-4 longwall. This 

should have caused operator to take effective action to 

prevent obstructed intake escapeways. 

Petitioner's Testimony and Evidence (Order No. 3117868) 

MSHA Inspector Bretzel Allen confirmed that he conducted a 

surface inspection of the mine on May 23, 1989, after receiving a 

section 103(g) complaint from a representative of the miners. 

The complaint concerned a D-7 bulldozer with broken cat pads 

being operated in the refuse dump area. He confirmed that the 

broken pads had been replaced prior to his inspection, but that 

he determined that they were previously missing through his 

discussion with the equipment operators, foreman Jim Richards, 

and the respondent's accident prevention officer, Wesley·oobbs. 

Mr. Allen identified exhibit P-4-E, as a copy of an equipment 

record book which reflects that the broken pads had been reported 

by the machine operator, and he stated that Mr. Richards confirmed that this had been done (Tr. 12-16). 

Mr. Allen stated that he was informed that new replacement 

cat pads were ordered and received on May 17 or 18, 1989, and 

were installed on the dozer on May 19. The complaint was made 

because the dozer had not been taken out of service and was 

continuously used from May 15 to May 19. He confirmed that the 

primary purpose of the cat pads is to provide traction for 

tramming the dozer, and they are also used as a travelway for the 

machine operator to access and exit the cab of the machine. The 

operator walks along the pads to reach the left door of the cab 

which is normally used to get in and out of the machine. He 

confirmed that he has observed dozer operators enter and exit a 

dozer, and they aJways use the left track as a walkway (Tr. 

16-19). 

Mr. Allen stated that the pads normally break off at the 

location of the mounting bolts, and this leaves an opening 

9-1/4 inches wide by 12 inches long. He believed that a missing 

pad would pose an injury hazard because the dozer tracks are 

slippery, and the operator normally takes short steps while 

walking across the cleats and he needs to hold onto a handrail or 

some part of the machine to get on off. The dozer in question 

can be expected to be used at night, and visibility of the tracks 

is poor because the dozer operates in a muddy and wet area and 

someone may not notice any missing pads because they may be 

covered or "caked" with mud. He believed that a slip or fall off 

the machine would result in "lacerations, strains, sprains, 

fractures, different things" (Tr. 23). He confirmed that dozer 

1630 
operator Bill Bice lost 3 days of work when he slipped on a 

broken cat pad and received a back injury. 

Mr. Allen stated that he based his unwarrantable failure 

finding on the fact that the respondent knew the pads were broken 

because the condition had been reported and recorded in the 

record book. Although replacement parts were ordered, the 

respondent continued to use the dozer with the broken pads 

instead of removing it from service until it could be repaired, 

and this did not comply with section 77.404(a). Mine management 

gave him no reason for not installing the cat pads on May 17 or 

18, and replacement could have been achieved by removing and 

replacing four bolts. He confirmed that management was aware of 

Mr. Bice's injury because it promptly reported the incident to 

MSHA (Tr. 24). 

On cross-examination, Mr. Allen stated that the operator's 

controls on the right side of the cab would hinder his exit from 

that door and that the manufacturer put two exit doors on the 

machine "in case of an emergency." He confirmed that a missing 

pad would leave an opening 9-1/2 wide by 12 inches long by measuring a pad which was on the machine. He also confirmed that the 

accident report concerning Mr. Bice reflects that he lost 1 day 

of work, and that weekends are not counted as workdays (Tr. 26). 

Mr. Allen confirmed that he cited a violation of 77.404(a), 

because he believed that the two half-broken cat pads on the 

cited dozer rendered the machine unsafe to operate, and that the 

respondent should have immediately removed it from service once 

it knew the pads were broken (Tr. 26). He stated that the cat 

pad on the cited dozer is approximately 36 inphes wide, from left 

to right, and that after counting the number of pads on a print 

of a D-7 dozer, he determined that there are 72 pads on the 

machine. He agreed that there could be a minimum of 77 pads on a 

dozer, but did not believe that the cited dozer had more than 77, 

but he did not count them (Tr. 29). 

Mr. Allen confirmed that he has operated a D-7 dozer and he 

described the enclosed glass operating cab. He stated that the 

dozer is normally mounted from the back, and that the terrain 

where the machine is operated has some e·ffect on whether or not 

the pads break. He believed that a dozer operator would not 

necessarily look for any broken pads, and he has not observed any 

employee exit from the cab onto the track and jump off the 

machine (Tr. 33). If an operator observed a broken pad, he could 

move the machine so that the broken pad is contacting the ground 

prior to dismounting, or he could use the other door. He confirmed that each operator is responsible "to a certain extent" 

for his own safety when he is mounting and dismounting the 

machine (Tr. 34). 

1631 
Mr. Allen defined "unwarrantable failure" as "an unsafe 

condition or practice that the operator knew about or should have 

known about" (Tr. 35). He determined that the violation was an 

unwarrantable failure because Mr. Richards, the foreman in 

charge, knew about the condition of the dozer for a week, and 

that the surface superintendent, Richard Haught, also knew about 

the condition. Mr. Allen confirmed that he did not see or 

measure the broken pads because they had already been replaced at 

the time the o~der was issued (Tr. 36). 

Mr. Allen stated that unless the dozer has been parked or 

cleaned up, it is normally slick because it operates in wet 

materials, and that a certain portion of the mud which adheres to 

the tracks is discharged because the machine is designed to do 

this (Tr. 48). He confirmed that getting on and off a dozer is 

hazardous and that an operator should be cautious and use "the 

grab bars" on the machine (Tr. 53). 

Delbert Barnett, testified that he has been employed by the 

respondent as a mobile equipment operator for approximately 

7 years. He operates a dozer at the coal refuse area where "it 

is the type of refuse which is real mucky" and black in color. 

He was aware of the injury to Mr. Bice when he fell through a pad 

on a dozer, and he confirmed that in 1989, there were problems 

with broken bolts on the pads. Complaints were made to management, but no action was taken until Mr. Bice was injured, and 

management then began repairing the pads. The safety department 

met with the operators and instructed them that no one was to 

operate dozers if a pad was broken off, and he was never required 

to operate a dozer with broken pads. However, the operators were 

required to operate the dozers when it was known that they were 

loose. He adknowledged that it was difficult to detect a loose 

pad unless one actually stepped on it, and when a loose pad was 

discovered, the foreman was notified, and he was supposed to 

contact a mechanic to fix it (Tr. 59-62). 

Mr. Barnett-identified exhibit P-4-E, as copies of equipment 

operator's checklists which he has filled out and left to be 

picked up by management. He identified a May 16, 1989, checklist 

which he filled out and it notes that "two pads broke, left 

side," and confirmed that he gave it to foreman Jim Richards, but 

that Mr. Richards took no action to repair the machine that day 

(Tr. 63). Mr. Barnett also confirmed that he made a notation on 

the form that the "pads was broke off the tracks" and that he 

"almost fell through the broken pads," and he further explained 

this incident (Tr. 64-67). He believed that missing cat pads 

pose a risk to him because when he is working on slopes or 

benches he should not have to worry about "stepping and falling 

through something" (Tr. 67). He stated that it is much easier to 

walk if there are no missing pads, and that at times, the tracks 

are so muddy that he cannot see the pads and that its "real 

1632 
slippery" and· "that is why we have so many hand bars on it to 

hold yourself as you're getting up on the machine" (Tr. 68). 

Mr. Barnett stated that the cited dozer was operated "around 

the clock," an.d that he has operated it in the dark once or twice 

in the past year, and the only lighting was on the front and back 

of the machine. There are times when he cannot exit from the 

right side of the machine, and he uses the left side track for 

checking the machine oil, transmission, and water level at the 

start of the shift, and his gauges during the shift (Tr. 70). He 

uses the right exit of the machine more than the left because a 

parking brake on the left side is "a hassle" (Tr. 72). 

Mr. Barnett explained that the problems with the pads began 

when the respondent decided to weld the mounting bolts to keep 

them from breaking and to save time replacing the bolts. However, the pads were crystallized when they were welded by a 

contractor, and most of them have been replaced to their original 

factory condition (Tr. 73). 

On cross-examination, Mr. Barnett stated that he has always 

reported broken pads to management, and that his reports are left 

on a desk.to be picked up by the foreman. He stated that he can 

observe the pads as they move around when the machine is operating, and can see any broken pads once the machine is moving (Tr. 

74-80) • He confirmed that the machine oil and water must be 

checked from the left side, and that the fuel is checked from the 

right side (Tr. 81). He confirmed that he can use the right side 

to exit the machine, or sometimes can move the machine forward to 

avoid broken pads, if he is aware of them (Tr. 83-84). He denied 

that he has ever jumped off a machine, and he has never observed 

anyone do so (Tr. 85). 

Mr. Barnett confirmed that Mr. Dobbs, who is with the 

respondent's safety department, has instructed the dozer operators not to operate any dozers with broken pads, but that 

Mr. Dobbs told them... this after the violation in this case was 

issued, and not before (Tr. 86). He also believed that the 

safety department stated that dozers with broken pads would be 

withdrawn after Mr. Bice was injured, but before Inspector Allen 

came to the mine (Tr. 86). 

In response to further questions, Mr. Barnett stated that he 

had observed the broken pads which he had reported on the May 16, 

1989, checklist during the shift, but that the respondent took 

the position that broken pads were not against the law and that 

"it wasn't no safety issue for us to run the machinery" with 

broken pads. He stated that "the company told us that we had to 

run them with broken pads," and that after Mr. Bice was injured, 

"they started shutting the machine down and fixing the pads" (Tr. 

89). He could not recall why he did not report any broken pads 

on his checklist report dated May 17, 1989, and was not sure if 

1633 
they had been repaired by that time (Tr. 90). He considered a 

dozer with broken pads to be unsafe when he had to use them as a 

walkway, checking his machine, or dismounting (Tr. 94). He 

confirmed that he would leave the machine from the right or left 

side, depending on where it would be parked, and whether there 

were any obstructions present (Tr. 95). 

Dave Kincell confirmed that he has been employed by the 

respondent as a dozer operator for 7 years, and that he operates 

a dozer in the refuse area. He was aware that Mr. Bice hurt his 

tail bone a couple of times when he slipped off a dozer (Tr. 98). 

He was also aware of pad problems in the spring of 1989, when the 

pads were coming loose and the respondent decided to have them 

welded (Tr. 99). He confirmed that mine management instructed 

the dozer operators not to operate any dozer with a broken pad, 

and he believed that this statement was made after Mr. Bice was 

injured and before Inspector Allen issued the violation in this 

case (Tr. 100). 

Mr. Kincell believed that missing cat pads pose a risk to 

him as the dozer operator, particularly before daylight during 

the winter when he cannot see any broken pad on the machine 

walkway. He stated that he can see one-third of the pad from his 

operator's cab, and that the pads are hard to walk on when they 

are wet and slippery, even if none of them are missing or loose 

(Tr. 101). At times, the mud is packed ·on the pads and "you 

wouldn't know it was there until you stepped on it or the mud 

fell out of it" (Tr. 101). He did not believe it was practical 

for him to remember if a pad is missing and act accordingly, 

because he is concentrating on operating his machine and not the 

pads (Tr. 103) . 

Mr. Kincell confirmed that the oil on a D-7 dozer is checked 

from the left side, and that he has worked as a mechanic and has 

repaired the pads. He believed that anyone can change the pads 

with the proper t9ols, and if the bolts were not required to be 

burned off, a_pad can be replaced in 20 minutes, or in 35 to 

45 minutes if the bolts had to be burned off. Such repairs are 

made by mine employees or contractors at the mine (Tr. 105). 

On cross-examination, Mr. Kincell confirmed that 

Mr. Richards, Mr. Dobbs, and others told the dozer operators that 

they were not to operate the dozers with broken or chipped pads, 

and that this was said during a safety meeting the morning 

following Mr. Bice's injury. He stated that "they said if you 

get on your machine and you checked it out and it had a broken 

cat pad, notify them and they will find you something else to do 

until it was fixed, or it wouldn't ~un like that" (Tr. 108). He 

acknowledged that he can exit from the right side of the dozer, 

but that he cannot see the front and sides of the dozer tracks 

from the cab because the view is obstructed by a hydraulic tank 

and fender (Tr. 108-110). Mr. Kincell confirmed that he is more 

1634 
careful in mounting and dismounting a dozer when operating under 

wet and slippery conditions (Tr. 111). 

Mr. Kincell confirmed that he fills out an operator's checklist on a daily basis, and has reported broken dozer pads "quite 

a few times" (Tr. 113). He stated that he has operated a dozer 

knowing that the pad is broken if he knew that management would 

repair or replace it within "the next hour or so," but has 

refused to operate a machine when he knew that there were no 

replacement pads available, or he had to operate the machine on a 

slope (Tr. 113, 122-123). He conceded that he is responsible to 

watch out when climbing on a dozer or using the walkway (Tr. 

114). 

Bill Bice testified that he has been employed by the respondent as a mobile equipment operator for 10 years and operates a 

D-7 dozer. He confirmed that he was injured on March 2, 1989, 

when he stopped the dozer to obtain some oil and while leaving 

the machine he stepped into a hole created from a partially 

broken track pad, and strained his back when his foot went 

through the hole (Tr. 129; exhibit P-4-D). He confihned that he 

had previously slipped on a track pad and broke his tail bone 3 

to 4 years ago. There was nothing wrong with the pad, but it was 

slippery and his feet went out and he fell (Tr. 131). 

Mr. Bice stated that management called him at home when he 

was injured on March 2, 1989, and informed him that dozers were 

not going to be operated with broken pads, and the following week 

or so~ this was confirmed by the safety department during a 

safety meeting with equipment operators (Tr. 132). He confirmed 

that the cited dozer which prompted Inspector Allen's inspection 

had a broken pad, and he considered a broken pad to be a risk or 

hazard to him (Tr. 133-134). · 

Mr. Bice stated that it is not·always easy to see whether a 

pad is broken because of poor ground conditions or lighting, and 

that it is easier to leave the machine from the right side 

because of the brake which is located on the left side. He 

confirmed that he has exited the machine from both sides, but 

that it is normally easier for him to leave by the right door, 

but there are times when he leaves from the left door depending 

on the circumstances presented (Tr. 136). 

On cross-examination, Mr. Bice confirmed that if he were 

aware of a broken pad and "was thinking about it" he could move 

the machine forward before leaving, or use the opposite door to 

exit. He confirmed that Mr. Richards assigned him to operate the 

dozer which was cited by Inspector Allen, but he was not sure of 

the date. He confirmed that he observed the broken pads, but 

that he did not make the safety complaint because he did not know 

the pads were broken until a day after the complaint was made 

when he came to work. He believed that half of the pad was 

1635 
broken off, and stated that there is a fender over half of the 

pad along the cab of the dozer, and that he would step on the 

fender and onto the track and would normally walk to the back of 

the machine to dismount (Tr. 139). 

Mr. Bice confirmed that prior to the violation in question 

he operated a dozer with broken pads, and that this condition 

does not render the machine inoperable and it would still have 

traction. He cquld not recall whether he has ever jumped off a 

dozer, but has observed other operators jumping off. He agreed 

that a dozer operator is responsible for being careful while 

mounting and dismounting a dozer, and that his usual practice is 

to use the grab bars on the back of the machine (Tr. 141). He 

did not believe that he was instructed not to use the cited dozer 

after the order was issued, but he was not sure (Tr. 141). 

Respondent's Testimony and Evidence 

Frederick L. Ware, Field Service Mechanic, Beckwith 

Machinery Company, was called as a witness out of turn by the 

respondent at the conclusion of the hearing of May 1, 1990, in 

another docket involving these same parties. He testified that 

he is a journeyman and master mechanic with 23 years of experience, and he has worked on and operated D-7 dozers. He recalled 

workirig on a D-7 dozer with broken pads at the mine between 

May 19 and 23, 1989, and he identified a copy of a work order 

dated May 19, 1989, (exhibit R-2-1). The order reflects that he 

replaced three broken pads, and he believed that they were broken 

on the inside of the rail, but he was not sure (Tr. 197). He 

confirmed that the upper portion of the D-7 dozer tracks is 

utilized as a walkway for the operator to mount and dismount and 

it is the only way one can get on the machine. The operator 

usually mounts the machine from the front because there are 

fenders on the back end and the handrails are on the front. He 

identified exhibit R-2-C as a photograph of the dozer. 

Mr. Ware sta~d that it would be difficult for the dozer 

operator to see a broken pad on that portion of the track which 

is on the ground, but that he could see the portion of the track 

which is not hidden by the ground. He confirmed that the operator can see the front portion of the tracks from inside the cab, 

but not that portion directly under him (Tr. 199). He confirmed 

that the pads are properly attached to the D-7 dozer by bolts, 

and that the respondent welded the bolts so that they do not 

vibrate as an added safety feature or precaution. He stated that 

there are 38 pads on each side of the dozer, and that this is a 

standard track. Some dozers have extended roller frames which 

can accommodate two more pads on each side (Tr. 200). 

In response to a question as to whether or not two 

half-broken pads would render the D-7 dozer unsafe to operate "in 

1636 
any way as far as traction" is concerned, Mr. Ware responded as 

follows (Tr. 201-202): 

Q. Mr. Ware, in your opinion, would two half-broken 

cat pads, would that render this piece of equipment 

unsafe and unable to safely operate in any way as far 

as traction? 

A. We're talking about the operation of the machine? 

Q. That is correct. 

A. No, it wouldn't. 

Q. There is no way this would render this piece of 

equipment unsafe? 

A. No. There is nowhere it states in any of our books 

a broken pad is a reason for not operating a machine, 

as far as operation of the machine is concerned. 

Q. And two half-broken cat pads would not render the 

tracks loose, or you would not lose (sic) traction in 

any way? 

A. No. 

On cross-examination, Mr. Ware confirmed that "anybody can 

bolt on a track pad," and that the pads were welded on the dozers 

to prevent the bolts from loosening. He did not believe that the 

heat generated by the welding process affected the pads in any 

way, but that some pads which were welded "underneath on a pad to 

the link" caused a break problem. He could not recall whether 

the pads that he repaired had this problem (Tr. 204). He confirmed that "there are different things on different sides you 

have to look at on this machine at times." He stated that "I 

think the right t~ack is to refuel. Maybe to check the oil from 

the right side. I don't know" (Tr. 204). He believed that a 

broken pad would be visible to the operator during the daytime, 

but not at night (Tr. 205). 

In response to further questions, Mr. Ware stated that 

depending on the terrain, it is not unusual for D-7 dozer pads to 

break occasionally, and that the track pads are 32 inches extra 

wide and have a tendency to break on the outside regardless of 

who makes them or how they are installed (Tr. 205). The primary 

function of the pads is to provide traction (Tr. 206). 

Delbert Linville, respondent's refuse supervisor, testified 

that he is a master electrician and has mine foreman's papers. 

He explained the terrain at the refuse pile and confirmed that it 

consists of coal waste which is always wet and very slippery. In 

1637 
his opinion, two half-broken pads on a D-7 dozer would not render 

it unsafe to operate, and such a condition would not affect the 

tracks, and the loss of traction would be minimal (Tr. 146). He 

believed "that a man getting on or off the machine should pay 

particular attention to how he is stepping and where he is 

stepping" (Tr. 148). 

Mr. Linville stated that in his 27 years of experience he 

was unaware of any serious injuries involving broken pads on a 

dozer, and was not aware of any orders ever being issued by MSHA 

for such a condition, or for half-broken pads or any other reason 

(Tr. 150-151). He stated that the major purpose of the pads is 

to provide traction for the machine, and that they are not 

designed for a walkway (Tr. 151). He confirmed that night lighting at the refuse pile is provided by q portable light plant, and 

there are six to eight lights on each dozer, and although the 

lighting on the machine may not be adequate when an operator 

initially mounts it, once he turns the machine lights on, "he can 

see fine" (Tr. 152). 

On cross-examination, Mr. Linville confirmed that although 

the pads are primarily used for traction, the only way for an 

operator to reach the cab would be to "step on one to get up 

there." He stated that it might take 4 days to repair pads if 

they were not in stock, but he indicated that they are stocked 

and that the supplier is located 15 to 18 miles from the mine 

(Tr. 156). He confirmed that he was not the foreman when the 

order was issued, and that he never had two broken pads on a 

dozer and let it go for 4 days without repairing it (Tr. 156). 

He confirmed that a dozer operator may have to use both tracks to 

perform certain maintenance services (Tr. 157). 

Mr. Linville considered broken pads to be a normal wear and 

tear item, and stated that "in due time we would replace them, in 

a timely manner. If we didn't have them. in stock, then we had to 

buy it or order it_and then replace it" (Tr. 159). He confirmed 

that in the past he would not have shut a machine down for broken 

pads. He was not aware of any inspector citing a machine when he 

observed a broken pad, nor was he aware of any inspector inspecting the pads on a dozer and say anything about them (Tr. 159). 

He did not consider the machine with a broken pad that Mr. Bice 

stepped through to be in an unsafe condition because he believed 

that Mr. Bice should "try to get off as easy as he can, as safe 

as he can," and that he should have been looking and able to see 

the broken pad (Tr. 160). 

Petitioner's Testimony and Evidence (Order No. 2944318) 

MSHA Inspector Spencer Shriver· confirmed that he conducted 

an inspection on May 24, 1989, in the company of Mr. Dobbs and 

miner's representative Pat Grimes. Referring to a sketch of the 

cited area, he described the parts, supplies, and other materials 

1638 
which he observed in a crosscut on the intake escapeway, including water and muddy holes approximately 1 foot deep. The water 

holes were not bridged or being pumped, and he concluded that all 

of the accumulated materials, including the holes, obstructed the 

escapeway and constituted a violation of section 75.1704. 

The inspector believed that the cited standard requires that 

an escapeway be maintained in such a condition so as to allow 

travel by miners, including disabled persons who may be carried 

out on stretchers. He stated that he had to climb over the 

materials in the crosscut, and he believed that in an emergency, 

injured or disabled miners, as well as miners assisting those who 

may be injured, would be exposed to a danger of falling while 

attempting to travel through the obstructed area. He also 

believed that the slippery and muddy waterholes obstructed the 

escapeway, and presented a slip and fall hazard, including drowning. Miners would also have difficulty reaching some of the self 

rescuers stored in the area because they would have to climb over 

the accumulated parts and materials (Tr. 169-175). 

Mr. Shriver stated that if an emergency were to '"occur, and 

miners had to use the obstructed escapeway, particularly while 

carrying out any injured miners, it would be reasonably likely 

that an injury would occur. In the event of a longwall dust 

ignition, a fire on a track locomotive, or a major disaster, 

smoke would course through the area and would affect visibility. 

If an injured miner attempting to travel the escapeway where the 

water holes were located was unaware of the holes, he could slip 

and fall and conceivably be drowned or knocked unconscious out 

(Tr. 177-178). 

Mr. Shriver stated that longwall foreman Larry Morgan 

admitted that he knew that the escapeway was impeded and informed 

him that the midnight crew had knocked down the stopping in the 

crosscut to prepare the changing of the escapeway. He stated 

that Mr. Morgan explained that the respondent's policy is to 

initially clear any existing obstructions, then knock down the 

stopping, and hang check curtains. Mr. Shriver also determined 

that a supply scoop had difficulty travelling over a 2-foot 

dropoff at one of the water holes, and that a chain had been used 

over a 3-day period to pull the scoop over the hole. He concluded that the supplies and materials in the crosscut had been 

there since approximately 8:00 a.m. on the day of his inspection, 

and that the water hole had been there for 2 or 3 days. He 

concluded that "it had been there a relatively long time, and I 

consider it to be a serious violation" (Tr. 179-181). 

Mr. Shriver stated that he had previously visited the longwall area on a "prestart" inspection and informed the respondent 

of the hole which had a 3-foot "stepup" and that a ladder or 

steps should be installed. When he returned on May 1, 1989, two 

bags of rock dust were in the hole but they were broken and "of 

1639 
no consequence," and he cited the condition. He informed the 

respondent of a possible problem with the escapeway and that 

additional attention should be given to it so that it did not 

become unpassable. He further stated that Mr. Morgan admitted 

that he was aware of the situation "but just hadn't really got 

around to having it cleaned up." Under all of these circumstances, Mr. Shriver concluded that the violation was an unwarrantable failure (Tr. 182). 

Mr. Shriver confirmed that some of the bricks and blocks 

from the stopping which had been knocked out by the midnight 

shift had been removed, and that three curtains had been hung. 

He observed no work being performed to remove the accumulated 

materials, and the longwall was in operation. Mr. Shriver 

believed that the material was being "warehoused" back in the 

crosscut when the stopping was still intact, and he confirmed 

that at that time, that location was not a designated escapeway 

and the material did not have to be cleaned up. Once the 

stopping was knocked out to reroute the escapeway, it became an 

escapeway "at that precise moment," and it was required to be 

free of debris (Tr. 186). 

Mr. Shriver also believed that the waterhole in the intake 

escapeway entry constituted "unwarrantable conduct" because he 

was informed that it had been there for several shifts and that 

men were seen pulling a scoop out of the hole for 2 or 3 days 

using a chain over the top of some roof bolts. He observed the 

rusted and broken bolts, and concluded that the water hole had 

been there for several shifts. During this time, the hole was in 

the escapeway, and the escapeway was being re-routed to the area 

where the stopping had been knocked out. Since the escapeway had 

to be walked·weekly, ahd since the scoop was there, and it 

required an electrical inspection, he concluded that mine management should have known that the hole was there (Tr. 192). · 

On cross-examination, Mr. Shriver confirmed that his initial 

gravity finding that- it was reasonably likely that a fatality 

would occur, was subsequently modified to "permanently disabling" 

during an MSHA conference that he normally does not attend (Tr. 

196). He also confirmed that there are several miles of escapeways on the section, and that self rescue devices are stored all 

along the working faces and it would not be necessary to use the 

ones near the obstructed escapeway in question (Tr. 196). 

Mr. Shriver confirmed that when he encountered the three 

miners in the dinner hole who advised him about the water holes, 

they told him that they were informed by their supervisor to 

clean up the escapeway once the ventilation was moved up (Tr. 

198). He also confirmed that there are other available escapeways out of the section other than the one that was being 

re-routed (Tr. 200). He agreed that there are no regulations 

establishing any time limits for a section supervisor to move the 

1640 
ventilation or clean up an escapeway once he arrives on the 

section (Tr. 201). 

Mr. Shriver confirmed that there was a pump located in the 

track entry, and a 2-inch line was installed over the water hole. 

However, the pump was not working, and he was told that it was 

inoperative since at least the morning of his inspection. He 

concluded that.the area was a "natural sump area" and that the 

water drained to the area of the hole (Tr. 204). 

Mr. Shriver stated that the partially obstructed escapeway 

constituted a significant and substantial violation, because the 

presence of the "three different sets of obstructions" which he 

found could reasonably likely result in injuries and that if a 

person "was disabled himself or assisting a disabled person, 

there could be further injury to his injury" (Tr. 204). He 

confirmed that he climbed over the accumulated material "with 

some care and great difficulty," and although there was a walkway 

present, the area was still obstructed with materials. He agreed 

that there were three escapeways on the section, namely, at the 

intake, track, and belt, and that the other escapeways can be 

used in an emergency (Tr. 205). He also agreed that self 

rescuers are available along the face where the longwall operator 

and shield men would be working (Tr. 206). With regard to four 

visitors who were on the section, Mr. Shriver confirmed that they 

were required to be hazard trained by the respondent, and he was 

informed that they had all been trained (Tr. 208). 

With regard to his prior citation at the 3-foot "stepup" 

location, Mr. Shriver stated that he discussed it with the 

respondent during his April pre-start inspection, and when he 

returned on May 1, rock dust bags had been thrown in the hole for 

someone to step on, and some effort had to be made to address the 

problem. He confirmed that he advised the assistant longwall 

coordinator at that time that "you best be getting a grip on this 

escapeway situat:ton" (Tr. 222). 

Patrick Grimes testified that he is employed by the respondent as a mechanic and serves on the union mine safety committee. 

He confirmed that he accompanied the inspector on May 24, 1989, 

and the parties agreed that his testimony concerning the conditions cited by the inspector would be the same as the inspector 

(Tr. 228). Mr. Grimes confirmed that the stopping had been 

knocked down on the previous shift and that the miners in the 

dinner hole confirmed that they were assigned to clean up the 

accumulations and were .not busy doing other work (Tr. 229). 

Mr. Grimes stated that foreman Larry Morgan informed them that he 

was aware of the water, that a water pump was present in that 

area, but Mr. Grimes did not know whether Mr. Morgan knew that 

the pump was not operating. Mr. Grimes stated that the escapeway 

had been used to bring supplies to the section and that a scoop 

had been pulled through the hole (Tr. 231). 

1641 
On cross-examination, Mr. Grimes stated that the mine pumps 

millions of gallons of water a day, and that the water hole was 

approximately a foot deep. Mr. Morgan informed him that the 

water was being pumped from the hole, that the stopping had been 

knocked out on the midnight shift, and that the ventilation had 

been moved up, but nothing had been done to clean up the 

accumulated materials (Tr. 234). 

Respondent's Testimony and Evidence 

Larry Morgan, section supervisor, testified that he was the 

supervisor on the longwall section on May 24, 1989, when the 

inspector issued the order. He confirmed that the shift began 

for him at 9:30 a.m., and that he instructed his crew to move the 

ventilation and help clear the walkways. Referring to a mine 

map, exhibit R-5-A, Mr. Morgan identified the location of the 

alleged obstructed escapeway, and he stated that once the stopping was knocked out, he could observe the escapeway, and he 

confirmed that it was partially obstructed. He stated that there 

was a 30-inch walkway through the area, that "you could walk 

through it," and there were no blocks in the walkway (Tr. 247). 

He first learned that the escapeway was partially obstructed 

"after we knocked the stopping out for the ventilation move" (Tr. 

247). Although he believed that establishing ventilation and 

cleaning up walkways are both important, he would first establish 

the ventilation to keep any gas off the face and then address the 

walkways (Tr. 248). 

Mr. Morgan confirmed that he observed the cited water and 

mud condition one block outby when it was brought to his attention by the inspector. He stated that the location of the hole 

was in a low part of the heading, and the water drains into the 

hole. A pump was installed to pump off the water, and a scoop 

had traveled over the area. The pump was pumping when the 

inspector came to the area, but it was not pumping efficiently 

(Tr. 250). He could not recall whether the inspector asked him 

whether the pump was effectively draining off the water, and when 

he informed the inspector that he had instructed his crew to 

clear the walkway, the inspector said "that's how it was whenever 

he come in and that's the way it's going to be" (Tr. 251). 

Mr. Morgan did not believe that any miner was exposed to a 

hazard at the time of the inspection, and he received no complaints from any miners regarding the alleged hazardous condition 

of the escapeway or the water. When he learned that the pump was 

not working, he requested that a pumper be sent to the section to 

check it, and prior to this time the pump was adequately pumping 

the water. He described the hole as "slope like" and "a low 

place," and that it was not a hole that anyone could fall into 

(Tr. 252) . 

1642 
On cross-examination, Mr. Morgan stated that other than a 

notation as to when he arrived on the section, he had no other 

notes concerning the cited conditions. He confirmed that he did 

not fire boss the water hole, noticed that there was a pump on 

the section, and knew that the hole existed, but did not know 

when he first became aware of it or how long the pump had been 

there (Tr. 254). He was aware that a scoop was used to bring 

materials to the section up the escapeway, but was not aware that 

any vehicles got stuck in the hole (Tr. 255). 

Mr. Morgan stated that the walkway was off to the left side, 

and he disagreed with the testimony of the inspector and 

Mr. Grimes that they had to actually walk over the accumulated 

materials. He confirmed that he made no notes or drawings and 

that his testimony is based on his recollection. He denied that 

he had to step over anything when he walked the area, and he 

believed that anyone who was disabled in an emergency could 

safely pass through the area. He confirmed that he did not 

observe the materials when he fire bossed at 8:50 a.m., because 

the stopping was still in place at that time and the materials 

were on the other side of the stopping (Tr. 257-258)~ 

In response to further questions, Mr. Morgan stated that 

there are four escapeways on the section, and he identified them 

as the main, track, belt, and return escapeways, and that "the 

others" were not obstructed and the men could have gone out the 

other three escapeways (Tr. 263). ·After the stopping was knocked 

out, the materials behind it had to be moved with a scoop., and if 

they were to remove the materials before knocking out the stopping, the materials would have to be carried out by hand because 

the scoop could not get around to the area. He was aware of back 

injuries resulting from people carrying heavy· materials in the 

mine (Tr. 264). 

Mr. Morgan admitted that a scoop could have reached the area 

where the material§ behind the stopping were located, and that 

any handling of the materials by hand would be limited to moving 

them out of the way so that they could be loaded on the scoop and 

moved to another location, and that the materials would not be 

hand-carried out of the section (Tr. 264-267). He was not aware 

that all of the accumulated materials cited by the inspector were 

behind the stopping until it was knocked down. When asked 

whether he was surprised that the materials were there, he stated 

that "I didn't realize there was that much there" and was not 

aware of "all of it" (Tr. 269). He stated that while there was a 

clear walkway to the left side of the area, the walkway had not 

been established as such, and that he was in the process of doing 

this when the inspector arrived. He conceded that none of the 

material had been removed before the inspector saw them (Tr. 

269-270) . 

1643 
Mr. Morgan stated that he instructed his crew to clean up 

the materials during the first part of the shift after the stopping was knocked out, and that "whenever we move up·; we just 

automatically knock out stoppings" (Tr. 273). He assumed that 

the materials were moved to the location in question with a scoop 

"and then hope to get them out of the mine" (Tr. 273). He stated 

that the inspector was mistaken when he testified that he 

(Morgan) told him that the stopping in the crosscut between the 

track entry and the intake escapeway was the one that was knocked 

out by the night shift, and that the stopping knocked out by the 

night shift was the belt stopping (Tr. 274). 

Inspector Shriver was recalled, and he testified that it was 

his understanding through his conversation with Mr. Morgan that 

the. stopping between the track and the intake entry had been 

taken down by the night shift, and that during this conversation, 

he, Mr. Grimes, Mr. Dobbs, and Mr. Morgan were all looking into 

the area where the accumulated materials were located, and that 

this occurred at approximately 11:45 a.m. Mr. Morgan told him 

that the night crew had knocked the stopping down, and that he 

.had assigned men to clean it up (Tr. 281). 

When asked whether there could have some confusion over 

which stopping was taken down by the night shift, Mr. Shriver 

stated as follows (Tr. 286): 

THE WITNESS: Well, both stoppings were done, and the 

one that we were discussion had the accumulation of 

parts and junk behind it, and we were all standing 

there looking at it, and Mr. Morgan --

JUDGE KOUTRAS: Well, it becomes critical because if it 

was knocked out the midnight shift, there may have been 

an hour or two interval in there where you obviously 

believed it was done at midnight. You felt that 

between that ±ime and the start of the day shift they 

should have had it cleaned up. 

THE WITNESS: That's right. 

JUDGE KOUTRAS: If it was knocked down shortly before 

you got there, then certainly they didn't have enough 

time to clean it up. Do you follow? 

THE WITNESS: Yes. 

on cross-examination, Mr. Shriver confirmed that he did not 

specifically ask Mr. Morgan which stopping was knocked down by 

the night shift because "we were standing there looking at this 

area" (Tr. 286). He also confirmed that Mr. Morgan did not ask 

him why he was issuing the order or indicate to him that he had 

just knocked the stopping down, and that Mr. Morgan stated "the 

1644 
stopping was knocked down by the midnight and we hung the ventilation curtains" (Tr. 288). Mr. Shriver stated that he did not 

ask the men on Mr. Morgan's shift who informed him that they were 

assigned to clean the area whether or not they had knocked down 

the stopping (Tr. 289). He also did not ask Mr. Morgan whether 

they had just knocked the stopping down (Tr. 290). 

Wesley Dobbs testified that he is employed in the respondent• s safety department as an accident prevention officer, and 

he confirmed that he arrived on the section at approximately 

11:00 a.m. on the day of the inspection and was with the inspector and Mr. Grimes. After confirming that they were on the 

intake escapeway, the inspector told him that "there could be a 

problem" and Mr. Dobbs left to get Mr. Morgan. When they 

returned, the inspector informed Mr. Dobbs that he was issuing a 

section 104(d) (2) order for obstruction of the walkway to the 

intake, and at that point Mr. Morgan informed the inspector that 

he had removed the intake stopping and had installed a check 

curtain (Tr. 298). Mr. Dobbs identified the two stoppings in 

question, and stated that Mr. Morgan informed the inspector that 

he had removed the stopping between the intake and track entry, 

and Mr. Dobbs surmised that the midnight shift had removed the 

belt and 4rack stopping (Tr. 299-300). 

Mr. Dobbs stated that there is a priority for removing 

stoppings, and that the belt and track stopping has to be removed 

first so as to avoid warm air and dust in the loading area (Tr. 

301-302) . If he were advancing the face, he would remove that 

stopping first, but he could not recall the inspector asking 

Mr. Morgan which stopping he removed. The inspector informed him 

(Dobbs) that he was issuing the order because of the obstructions 

on the walkway and that people could not pass through (Tr. 303). 

Mr. Dobbs observed the cited conditions, and he stated that the 

materials were on the right side and that there was a 30-inch 

opening on the left side which he measured with a tape, and that 

the area was only partially obstructed. He believed that a miner 

could walk through the opening and that the inspector himself 

walked through it and he is a "large man" (Tr. 305). 

Mr. Dobbs confirmed that he observed the water in the intake 

escapeway and he described the location as a "low place in the 

entry." He also observed an area along the left rib where it 

appeared that "the scoop had been trying to push some dirt, or 

something, so that the dirt was up on the left rib where persons, 

that you could see, had been walking on that dirt going up the 

intake" (Tr. 306). The water was draining to the low spot, and a 

pump was functioning and pumping water, but because of a problem 

with the bearings, it was "not pumping as it should be" (Tr. 

306) • 

On cross-examination, Mr. Dobbs stated that when he discussed the order with the inspector after it was issued, he did 

1645 
not give the inspector the impression that the stopping had been 

knocked out on Mr. Morgan's shift. He recalled that Mr. Morgan 

gave that impression to the inspector, but that he (Dobbs) had no 

underground notes to confirm this, and that the only notation he 

made underground was in reference to the walkway opening that he 

had measured (Tr. 311-312). 

Mr. Morgan was recalled, and he confirmed that during a 

ventilation move, the belt and track stopping would be removed 

first to keep the face ventilated and to avoid gas on the face 

(Tr. 315). He confirmed that when he was discussing the matter 

with the inspector, they were standing in the track entry near 

the location where the accumulated materials were observed (Tr. 

316) . 

Insnector Shriver was recalled, and he stated that he did 

not see Mr. Dobbs make any measurements of the walkway area in 

question. He did not observe Mr. Morgan and Mr. Dobbs walk 

through the area unimpeded, but did not know whether they may 

have done so out of his presence (Tr. 317). He agreed that it 

was quite possible that Mr. Dobbs and Mr. Morgan had one stopping 

in mind, and that he had another one in mind at the time of their 

discussion underground (Tr. 320). He also agreed that the belt 

and track stopping should have come down first, and assuming that 

it was taken down by the night shift, he would be looking at the 

other stopping when he arrived on the section, but that 

Mr. Morgan did not tell him that his shift had removed any 

stopping (Tr. 321). 

Findings and Conclusions 

Fact of Violation - Order No. 3117868, 30 C.F.R. § 77.404(a) 

The respondent is charged with a violation of mandatory 

safety standard 30 c~F.R. § 77.404(a), for operating a dozer with 

two broken "cat" Ci:" track pads. The cited standard provides as 

follows: "(a) Mobile and stationary machinery and equipment 

shall be maintained in safe operating condition and machinery or 

equipment in unsafe condition shall be removed from service 

immediately." 

The issue presented here is whether or not the evidence 

establishes that the broken dozer pads in question placed the 

machine in an unsafe condition while it was being operated. If 

it is found that the dozer was in an unsafe condition, section 

77.404(a), would require it to be removed from service immediately. In defense of the violation, the respondent relies on the 

testimony of its two witnesses who were of the opinion that the 

primary purpose of the pads is to provide traction for the dozer, 

and that operating it with two partially broken pads is not 

unsafe. 

1646 
The respondent's characterization of Mr. Ware and 

Mr. Linville as "expert witnesses" is inaccurate. I have 

reviewed the transcript and find that these witnesses were not 

offered or accepted as "experts." The record reflects that 

Mr. Ware has 23 years of experience as a journeyman and master 

mechanic, and he has serviced and operated D-7 dozers. However, 

I take note of the fact that when he was describing the servicing 

aspects of the machine, he "thought" that the right track was 

used to refuel the machine, and that "maybe" it was used for 

checking the oil, but did not know. If he were an "expert," one 

would reasonably expect him to know with more certainty the 

locations where this work would be performed. 

With regard to Mr. Linville, he is a certified electrician 

with 27 years of experience "working with or around heavy equipment." He co,nfirmed that he was not the foreman when the citation was issued, and I find nothing in his testimony to indicate 

that he has ever personally operated a D-7 dozer or personally 

performed any maintenance work on one. Under the circumstances, 

I have not considered Mr. Ware or Mr. Linville as experts, and 

cannot conclude that their testimony is entitled to ~ny greater 

weight than the other witnesses who testified in this case. 

In response to a question as to whether he believed that the 

operation of a dozer with two half-broken pads would render the 

machine unsafe to operate, Mr. Ware responded "no." However, he 

went on to explain his answer, and stated that there was nothing 

in his "books" (I assume he was referring to some kind of an 

operation manual), to suggest that a broken pad is a reason for 

not operating the machine~ He further qualified his answer when 

he stated "as far as operation of the machine is concerned," 

broken pads would not loosen the tracks or affect their traction. 

The thrust of Mr. Ware's testimony focuses primarily on the 

operation of the machine, rather than the safety implications of 

broken pads. 

Mr. Linville-was of the opinion that dozer tracks are not 

designed to be utilized as a "walkway," and that their primary 

purpose is to provide traction. He believed that two half-broken 

pads would result in a minimal loss of traction, and would not 

render the machine unsafe to operate. Mr. Linville's view of the 

safety hazards concerning a dozer which is operated with broken 

pads, and his opinion that operating a machine in that condition 

is not unsafe, may be summarized by his statements that a dozer 

operator should watch where he is stepping, and that Mr. Bice's 

injury, which occurred when he stepped through a hole created by 

broken track pads, could have been avoided if he were looking 

where he was walking. 

Mr. Ware agreed that the "upper portion of the track" on a 

D-7 dozer is utilized as a walkway for the operator to mount and 

dismount the machine, and stated that the use of the tracks "is 

1647 
about the only way you can get in" the machine. He also conceded 

that a broken pad would not be visible at night. Although he 

stated that an operator -

11 0.sually" mounts the machine from the 

front, the machine operators who testified credibly in this case 

indicated that they would mount and dismount the machine from 

either side, depending on the prevailing conditions, and used the 

tracks to reach the operator's compartment or to perform preshift 

and onshift servicing such as refueling or oiling, or to check 

the transmission or water levels. 

Mr. Linville conceded that the only way a dozer operator can 

reach the operating cab of the machine is to step up and on the 

tracks, and that the machine lighting may not be adequate for an 

operator operating the machine at night when he initially mounts 

the machine, and before he has an opportunity to turn on the 

lights. 

I conclude and find that the dozer tracks, including the 

pads, are and integral and functional part of the machine, and 

that the tracks and pads were used by the operators to facilitate 

the mounting and dismounting of the machine, as well as for 

servicing the machine as required. Even though the tracks and 

pads may have been designed to provide machine traction, their 

regular and normal use by the operators in the manner described 

may not be divorced from the safety requirements found in section 

77.404(a). 

The respondent's assertions that the inspector did not view 

the cited conditions, was not an expert, and should have cited 

another standard if he believed that the broken pads presented a 

stumbling or tripping hazard are not persuasive. The issue is 

whether or nO't the broken pads rendered the machine unsafe within 

the meaning of section 77.404(a), and whether there is a preponderance of credible and probative evidence to support a 

violation. 

Dozer operator Barnett, who had recorded the cited broken 

pads on his operator's checklist, testified and noted that he 

"almost fell through the broken pads," and he believed that 

missing pads pose a risk to his safety because he wanted to 

concentrate on the operation of his machine when he is working on 

the slope and bench areas, and did not wish to be distracted by 

worrying about any broken pads. He testified that he used the 

dozer tracks to service the machine, and that he mounted and 

mismounted the machine from both sides. 

Dozer operator Kincell believed that missing or broken pads 

posed a risk to him, particularly during the winter season before 

daylight when he cannot see any broken pads on the track walkway. 

He also testified that the tracks are inherently dangerous when 

they are wet and slippery, and that when the mud from the refuse 

area where he operates his machine adheres to the tracks, he 

1648 
would be unaware of a broken pad unless he stepped on it or the 

mud fell out of it. He also believed that it is impractical to 

expect him to recall whether a pad is broken, particularly when 

he is concentrating on operating the machine. Mr. Kincell confirmed that he has worked as a mechanic and has repaired dozer 

pads. 

Dozer operator Bice testified that he strained his back when 

he stopped his machine to oil it and stepped into a hole created 

from a partially broken pad while he was attempting to leave the 

machine. Mr. Bice confirmed that 3 or 4 years earlier, he 

slipped on a slippery track pad which was otherwise in good 

condition, and broke his tail bone. He believed that a broken 

pad posed a risk or hazard to him, and that it is always not easy 

to see a broken pad because of the ground conditions and poor 

lighting. He also confirmed that he used the tracks on both 

sides of the machine as a means of exiting the machine depending 

on the circumstances presented. 

Having viewed the equipment operators in the course of their 

testimony, I find them to be credible witnesses. After consideration of all of the testimony presented in this case, I conclude 

and find that the testimony of the equipment operators who operated the D-7 dozers clearly establishes that the broken pads on 

the cited dozer rendered it unsafe to operate, and that the 

respondent's failure to immediately remove it from service when 

the condition was discovered and reported constitutes a violation 

of section 77.404(a). Further, the fact that no other inspector 

had previously cited broken pads as a violation did not estop the 

inspector in this case from making such a finding. See: King 

Knob Coal Company, Inc., 3 FMSHRC 1417, 1422 (June 1980); Midwest 

Minerals Coal Company, Inc. 3 FMSHRC 1417 (January 1981); 

Missouri Gravel Co., 3 FMSHRC 1465 (June 1981); Servtex Materials 

Company, 5 FMSHRC 1359 (July 1983); Emery Mining Corporation v. 

Secretary of Labor, 3 MSHC 1585, the Tenth Circuit's Affirmance 

of the Commission's decision at 5 FMSHRC 1400 (August 1983). 

In view of the foregoing findings and conclusions, I conclude and find that the petitioner has established a violation by 

a preponderance of the evidence. Accordingly, the violation 

issued by the inspector IS AFFIRMED. 

Fact of Violation - Order No. 2944318, 30 C.F.R. § 75.1704 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 75.1704, for failing to maintain the 

cited intake escapeway free of obstructions so as to insure 

passage of miners or disabled miners. The cited standard provides in relevant part as follows: 

Except as provided in §§ 75.1705 and 75.1706, at 

least two separate and distinct travelable passageways 

1649 
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. * * * (emphasis added). 

In support of the violation, MSHA takes the position that 

the inspector's testimony, as corroborated by the detailed notes 

which he made at the time of his inspection, establishes that the 

intake escapeway was obstructed by the materials which he 

observed and inventoried in the escapeway crosscut, as well as 

the deep waterhole and ledge which he found in the intake entry 

one crosscut outby the location of the materials. Notwithstanding the respondent's testimony which contradicts the inspector's 

belief that the accumulated materials in the escapeway crosscut 

obstructed and impeded travel through the area, MSHA believes 

that the inspector's fully documented account of the conditions 

should be credited over the respondent's undocumented account of 

the conditions. 

With regard to the waterhole, MSHA asserts that the fact 

that a scoop was undeniably stuck in the waterhole and had to be 

winched out would tend to support the inspector's conclusion that 

the waterhole was large enough and deep enough to prevent travel 

by a crawling or limping miner using the escapeway in an emergency. MSHA maintains that the intake escapeway is designated to 

be the most assuredly safe means of escape since the other 

entries (track, or belt) have equipment that may be the source of 

smoke or fire. Citing two decisions by Commission Judges affirming violations of section 75.1704, MSHA concludes that standing 

water of the depths found in the present case constitutes hazardous conditions. See: Consolidation Coal Company, 3 FMSHRC 405 

(February 1981), and Mid-Continent Resources, Inc., 11 FMSHRC 

2456, 2499 (Decem0er 1989). 

In support of its case, the respondent argues that the 

requirements of sections 75.1704 and 75.1704-l(a), are not mandatory, and it cites· the Commission's decision in Utah Power and 

Light Company, 11 FMSHRC 1926 (October 1989), in support of this 

conclusion. I have reviewed this decision, and for the reasons 

which follow, I find that it is distinguishable from the instant 

case and that the respondent's reliance on that decision is 

misplaced. 

In the Utah Power and Light Company case, the operator was 

initially cited for a violation of section 75.1704-1, and the 

citation was subsequently modified to allege a violation of 

section 75.1704. The operator was cited with a failure to meet 

1650 
the criteria by which MSHA was to be guided in approving escapeways (5 foot height requirements). Apart from the alleged failure by the operator to comply with the criteria, the parties 

stipulated that the cited portion of the escapeway was fully 

passable by all persons, including disabled persons. On the 

basis of these stipulations, Judge Morris vacated the citation on 

the ground that the criteria relied on by the inspector in support of the violation were not mandatory requirements, and that 

the proper test for determining the adequacy of escapeways pursuant to section 75.1704, is whether they are maintained to 

insure passage at all times of any person, including disabled 

persons. 

The Commission affirmed Judge Morris' decision, and agreed 

with his findings that section 75.1704-l(a) does not impose a 

mandatory duty on a mine operator to either maintain escapeways 

in accordance with the subject criteria or to seek prior approval 

from MSHA for non-conformance with the criteria. However, the 

Commission, at 11 FMSHRC 1930, stated that the relevant language 

found in section 75.1704, was plain and unambiguous and established a general functional test of "passability" as•enunciated 

by Judge Morris. 

I take note of the fact that the Commission affirmed Judge 

Morris' decision in a companion Utah Power and Light Company case 

upholding a violation of section 75.1704, on the basis of evidence establishing that an escapeway was obstructed with loose 

coal and a 6-inch water line which was angled across the.escapeway, resulting in tripping, slipping, and falling hazards. In 

his decision at 10 FMSHRC 71, 78 (January 1988), Judge Morris 

observed that "In an emergency, men traveling the route will need 

the best possible avenue of escape, and their lives may depend on 

how well the escapeway is marked and maintained." In his decision in Mid-Continent Resources, Inc., supra, at 11 FMSHRC 2499, 

Judge Morris rejected the operator's contention that miners, or 

miners carrying a stretcher, could pass through a 3-foot walkway 

on the "up-dip" side of a water hole obstructing an escapeway 

without coming into contact with the hole, and he stated as 

follows: "I reject the operator's views; escapeways can often be 

filled with smoke and involve confused miners. And what of a 

mine crawling the escapeway. Is he to somehow find a three-foot 

walkway on the up-dip side?" 

In the instant case, the respondent is not charged with a 

violation of the escapeway criteria rejected by the Commission in 

the Utah Power and Light Company case, and the inspector did not 

rely on that section or the escapeway height criteria when he 

issued the violation. Accordingly, the respondent's reliance on 

that decision is rejected. I take note of my prior decision in 

southern Ohio Coal Company, 11 FMSHRC 1705, 1728 (September 

1989), affirming a violation of section 75.1704, which was issued 

at the Martinka No. 1 Mine. In that case, I concluded that 

1651 
section 75.1704, contains two basic requirements, namely, 

(1) that an escapeway b~ maintained to insure passage of miners 

at all times, and (2) that escapeways be maintained in a safe 

condition. I reaffirm and adopt those conclusions as the parameters under which the application of this standard should be 

considered in this case. See also: Peggs Run Coal company, 

1 MSHC 1342, 1346 (1975), affirming a Judge's decision that an 

operator failed to comply with the standard where water and roof 

conditions posed difficulties and risks to disabled miners; 

U.S. Steel Company, 6 FMSHRC 310, 313-314 (February 1984), holding that it is imperative that escapeways be maintained in a 

manner that they may be available and usable to escape from 

hazardous conditions; and Consolidation Coal Company, 2 FMSHRC 

1809 (July 1980), holding that section 75.1704 imposes an absolute duty on a mine operator to assure that escapeways are maintained in a safe condition. 

In further support of its case, the respondent relies on the 

testimony of Mr. Morgan and Mr. Dobbs who indicated that the 

accumulated materials were only partially obstructing the escapeway, and that there was a clear 30-inch walkway at the left rib 

which was readily passable. With regard to the water hole in 

question, the respondent does not dispute the existence of the 

water or the hole and concedes that the water accumulation was 

present at the first outby crosscut. However, it maintains that 

the water was a natural condition located in a low area of the 

mine where water accumuiated, and that it was being pumped out. 

Respondent also points out that a considerable amount of water is 

pumped from the mine and that the inspector did not dispute this 

fact. 

Section ?oreman Morgan did not dispute the existence of the 

conditions. However, he testified that there was a 30-inch 

walkway through the left side of crosscut area which would allow 

someone to walk through, and he observed that nothing was blocking the walkway. He conceded that the walkway had not been 

established as sucp, claimed that he was in the process of establishing the walkway when the inspector arrived on the section, 

but conceded that none of the materials had been removed before 

the inspector observed them. 

Mr. Morgan disputed the testimony of the inspector and 

Mr. Grimes that they had to step over the accumulated materials, 

and denied that he had to step over any of the materials when he 

walked the area. In his opinion, a disabled miner could safely 

pass through the area in an emergency. He confirmed that he did 

not observe the accumulated materials when he initially 

fire-bossed the section because they were located behind the 

stopping which was still intact, but conceded that the escapeway 

was partially obstructed, and that he observed this condition 

after the stopping was knocked down. He further confirmed that 

after knocking down a stopping, his first priority would be to 

1652 
establish the ventilation, and he would next attend to and clean 

up any walkway accumulations. 

Mr. Morgan confirmed that he made no notes or sketches at 

the time of the inspection and that his testimony was based on 

his "recollection." When asked if he was surprised about the 

existence of the materials behind the stopping before it was 

knocked down, Mr. Morgan responded "I didn't realize there was so 

much there." Although he indicated that he had instructed his 

crew to clean up the materials during the first part of the shift 

when the stopping was knocked down, the respondent called no crew 

members to testify about any cleaning up of the materials. 

Mr. Dobbs testified that the materials accumulated behind 

the intake escapeway stopping were on the right side as one 

looked into the area from the entry, and that he measured a 

30-inch opening or walkway on the left side. He characterized 

the area as "partially obstructed," and stated that the inspector 

walked through the opening. Mr. Dobbs also observed the water in 

the intake escapeway, and he described it as a "low place in the 

entry" where the water was draining to the low spot, and although 

he believed that a pump in that area was functioning, he conceded 

t.hat it was "not pumping as it should be." He also described an 

area along the left rib where he believed that a scoop had 

attempted to push some dirt, and that people had walked on the 

dirt going up the intake. Mr. Dobbs confirmed that with the 

exception of a notation which he made with respect to his measurement of the 30-inch "walkway," he made no other notes at the 

time of the inspection. 

The testimony of Inspector Shriver is documented by his 

detailed notes and sketches made at the time of his inspection, 

and the information recorded by the inspector with respect to the 

accumulated materials and the accumulated water and water hole 

were detailed in the order which he issued. The inspector's 

comprehensive testimony detailing these conditions was corroborated by one of the respondent's employee's (Patrick Grimes), a 

member of the mine safety committee who accompanied the inspector 

during the inspection. 

Although Inspector Shriver confirmed that there was a walkway present in the area where the accumulated materials were 

discovered, he stated that the area was still obstructed with the 

materials and that he had to climb over them with care and difficulty. He did not observe Mr. Morgan measure the walkway opening, nor did he observe Mr. Morgan or Mr. Dobbs walking freely 

through the opening, and I take note of the fact that Mr. Morgan 

conceded that the so-called "walkway" had not been established as 

such and that none of the materials had been removed before the 

inspector observed them. I find both Mr. Grimes and Inspector 

Shriver to be credible witnesses, and their testimony is corroborated by the detailed notes made by the inspector at the time of 

1653 
the inspection. I credit their testimony over the testimony of 

Mr. Dobbs and Mr. Morgan, and reject their contention that the 

walkway presented a clear and unobstructed passageway through the 

accumulated materials. 

I further find the inspector's testimony regarding the 

existence of 30 foot area of water and mud 12 inches deep, and a 

water hole approximately 40 feet long, rib-to-rib, 12 inches deep 

and with a drop-off of approximately 2 feet, to be credible, and 

I reject Mr. Dobbs' suggestion that there was a clear passageway 

along the rib to allow clear passage of people at this location. 

I accept as credible the inspector's belief that the intake 

escapeway area which was obstructed by the accumulated materials, 

and the areas obstructed by the slippery and muddy waterholes or 

areas, presented potential hazards to any injured or disabled 

miners, including miners assisting them, in the event they had to 

use the escapeway in an emergency situation. 

Section 75.1704, requires that an intake escapeway be maintained to insure passage at all times, and that it be maintained 

in a safe condition and properly marked. Although the escapeway 

was properly marked and designated, I conclude and find that it 

was not maintained in a safe condition, nor was it maintained to 

insure passage at all times by those miners who may have had a 

need to use it in an emergency to escape from the mine. Although 

there were other available escapeways, the cited intake escapeway 

in question was not maintained as required by section 75.1704. 

Accordingly, I conclude and find that MSHA has established a 

violation by a preponderance of the credible and probative evidence adduced in this case, and the contested violation IS 

AFFIRMED. 

Significant and Substantial Violations 

A ''significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coa~ or other mine safety or health hazard." 

30 C.F.R. § 814(d) (1). A violation is properly designated significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature." 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 its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a mandatory safety standard is significant and substantial 

under National Gypsum the Secretary of Labor must 

1654 
prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard--that is, 

a measure of danger to safety-contributed to by the 

violation; (3) a 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. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further 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). We have emphasized that, in 

accordance with the language of section 104(d) (1), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984); U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

The question of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). 

Order No. 3117868 - 30 C.F.R. § 77.404(a) 

I have concluded and found that the broken dozer pads cited 

by the inspector rendered the cited dozer in an unsafe condition 

while it was operated in that condition. Inspector Allen testified credibly that-the inability of an operator to see a broken 

pad because of poor visibility, or because of the presence of 

caked mud, would likely result in a slip or fall off the machine, 

and that should this occur, it would result in injuries such as 

lacerations, strains, sprains, or fractures. He also believed 

that such occurrences were likely in view of the fact that the 

dozer operates in the refuse area of the mine which is muddy and 

wet, and that even in cases where the pads are not broken, the 

tracks are slippery as a result of operating under such 

conditions. 

The evidence establishes that dozer operator Bice suffered a 

strained back when he stepped through a hole created by a partially broken pad while leaving the machine. Dozer operator 

Barnett testified that he nearly fell through a broken pad, and 

both he and the other equipment operators testified credibly that 

1655 
a broken pad exposed them to hazards. Under the circumstances, I 

conclude and find that the partially broken pads in question 

constituted a condition· which would reasonably likely contribute 

to an injury, and that it was reasonably likely that the injury 

would be one of a reasonably serious nature. Accordingly, the 

inspector's significant and substantial (S&S) finding IS 

AFFIRMED. 

Order No. 2944318 - 30 C.F.R. § 75.1704 

Inspector Shriver testified credibly that the cited 

obstructed escapeway areas in question exposed miners, as well as 

disabled miners, to tripping, falling, or slipping hazards while 

attempting to travel the obstructed escapeway, and that miners 

would have difficulty reaching some of the self rescuers stored 

in the area because they would have to climb over some of the 

accumulated materials to reach them. He believed that any miners 

using the obstructed escapeway in an emergency, particularly 

while carrying out any disabled miners on stretchers, would 

reasonably iikely suffer injuries. In the event of a mine disaster, their visibility would be affected if any smoke coursed 

through the escapeway while they were attempting an escape, and 

they could be unaware of the existence of the water and water 

hole and have difficulty in traveling through those areas and 

could conceivably be drowned or rendered unconscious if they were 

to fall or slip in these areas. 

Although it may be true that other escapeways were provided, 

and they were equipped with self rescuers, and that the mine 

visitors in question had received training, the fact remains that 

the cited intake escapeway was not maintained in a safe condition, and was not maintained free of obstructions so as to permit 

safe travel at all times. Under the circumstances, I conclude 

and find that the evidence establishes that the violation was 

significant and substantial, and the inspector's finding in this 

regard IS AFFIRMED. 

The Unwarrantable "Failure Issue 

The governing definition of unwarrantable failure was 

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided 

under the 1969 Act, and it held in pertinent part as follows at 

295-96: 

In light of the foregoing, we hold that an inspector should find that a violation of any mandatory 

standard was caused by an unwarrantable failure to 

comply with such standard if he determines that the 

operator involved has failed to abate the conditions or 

practices constituting such violation, conditions or 

practices the operator knew or should have known 

existed or which it failed to abate because of a lack 

1656 
of due diligence, or because of indifference or lack of 

reasonable care. 

In several recent decisions concerning the interpretation 

and application of the term "unwarrantable failure," the 

Commission 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." Energy 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). Referring to its prior holding in the Emery 

Mining case, the Commission stated as follows in Youghiogheny & 

Ohio, at 9 FMSHRC 2010: 

We stated that whereas negligence is conduct that 

is "inadvertent," "thoughtless" or "inattentive," 

unwarrantable conduct is conduct that is described as 

"not justifiable" or "inexcusable." Only by construing 

unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

dis~inct place in the Act's enforcement scheme. 

In Emery Mining, the Commission explained the meaning of the 

phrase "unwarrantable failure" as follows at 9 FMSHRC 2001: 

We first determine the ordinary meaning of the 

phrase "unwarrantable failure." "Unwarrantable" is 

defined as "not justifiable" or "inexcusable." 

"Failure" is defined as "neglect of an assigned, 

expected, or appropriate action." Webster's Third New 

International Dictionary (Unabridged) 2514, 814 (1971) 

("Webster's"). Comparatively, negligence is the 

failure to use such care as a reasonably prudent and 

careful person would use and is characterized by 

"inadvertence;" "thoughtlessness," and "inattention." 

Black's Law Dictionary 930-31 (5th ed. 1979). Conduct 

that is not justifiable and inexcusable is the result 

of more than inadvertence, thoughtlessness, or 

inattention. * * * 

Order No. 3117868 - 30 C.F.R. § 77.404(a) 

Inspector Allen confirmed that he based his unwarrantable 

failure finding in this case on the fact that the cited broken 

pads condition was known to foreman Richards and superintendent 

Haught, and that the dozer was permitted to continue to operate 

and was not taken out of service. The evidence made available to 

the inspector at the time of his inspection reflects that the 

broken pads were reported by the dozer operator on May 16, 1989, 

and that Mr. Richards acknowledged that this was the case. New 

1657 
replacement pads were ordered and received on May 17 or 18, but 

were not installed on the dozer until May 19, 1989. The inspector confirmed that mine management gave him no reason for not 

installing the pads when they were received, and he believed that 

the pads could have been readily installed by removing and 

replacing four bolts. 

Mr. Richards and Mr. Haught did not testify in this case. 

Mr. Ware identified a copy of a work order dated May 19, 1989, 

which reflects that he replaced three broken pads on the dozer, 

and he testified that he performed the work between May 19 and 

23, 1989. Mr. Linville, who was not the foreman at the time the 

order was issued, considered broken pads to be normal "wear and 

tear" items, and although he contended that broken pads would be 

replaced "in due time," he confirmed that in the past he would 

not shutdown a machine because of broken pads. 

Dozer operator Barnett testified credibly that he reported 

the broken pads condition on May 16, 1989, when he filled out an 

operator's checklist, and gave this information to Mr. Richards. 

Even though Mr. Barnett made a notation on the form that he 

"almost fell through the broken pads," Mr. Richards apparently 

took no action to repair the machine that day or to take it out 

of service. As a matter of fact, a "safety contact" made by 

Mr. Richards with an employee on May 19, 1989, reflects that 

Mr. Richards was aware of the two broken pads on the cited 

machine as of that date, and he simply cautioned the employee to 

insure that the pads were down when he stopped his machine, and 

instructed him to leave the machine from the right side (exhibit 

R-2-J). Mr. Richards' failure to take the machine out of service 

or to timely repair the pads corroborates Mr. Barnett's 

unrebutted testimony that prior to Mr. Bice's injury, the respondent permitted or instructed the equipment operators to operate 

the dozers with broken pads. 

After careful consideration of all of the testimony and 

evidence in this case, I conclude and find that the inspector's 

high negligence and unwarrantable failure findings were justified. I find nothing of record to mitigate the respondent's 

failure to timely repair the dozer or take it out of service when 

the condition was first reported to mine management. The respondent knew of Mr. Bice's injury some 2 or 3-months earlier, and 

its accident prevention officer Dobbs filed an accident report 

which specifically points out that Mr. Bice strained his back 

when he stepped into a hole "created from a partially broken 

track pad" (exhibit P-4-D). Mr. Barnett's report of May 16, 

1989, to Mr. Richards informed him that the cited dozer had two 

broken pads, and the report contained a notation by Mr. Barnett 

that he "almost fell through broken pads" (exhibit P-4-E). 

Rather than taking immediate or more timely action to correct an 

obviously hazardous condition which it was clearly aware of, mine 

1658 
management not only permitted the equipment to continue to operate with broken pads, a condition which was the proximate cause 

of Mr. Bice's injury and Mr. Barnett's "near miss, 11 -it expected 

the operators to continue operating the equipment in that condition. Under all of these circumstances, I conclude and find that 

mine management's failure to act was unjustified and inexcusable, 

and constitutes aggravated conduct. The inspector's unwarrantable failure finding is therefore AFFIRMED. 

Order No. 2944318 - 30 C.F.R. § 75.1704 

Inspector Shriver's unwarrantable failure finding was based 

on his belief that the water hole had existed for 2 or 3 days. 

He observed evidence that a scoop had difficulty traveling 

through the hole, and he was informed that a chain was used to 

pull the scoop through the area for 2 or 3 days. Although he 

believed that the hole had been present for "several shifts," 

there is no evidence that he reviewed any of the shift or preshift reports to determine whether the condition had been 

reported. He confirmed that section foreman Morgan appeared 

surprised at the existence of the hole. The evidence establishes 

that the hole was located at a low spot where water naturally 

drained, that the mine released a great deal of water, and that a 

pump had been installed in the area as a means of controlling and 

pumping the water. Although the pump may not have operating at 

peak efficiency, I cannot conclude that the respondent ignored 

this condition, and the existence of the pump establishes that 

some effort was being made to address the problem. 

With regard to the 3 foot "stepup" location, Mr. Shriver 

indicated that he had previously visited the area during a 

"prestart" inspection, and next returned on May 1, 1989, when he 

found that the respondent had placed some rock dust bags in the 

area to provide a means of crossing tbe "stepup." He issued a 

citation after determining that the bags were "of no consequence," and informed the respondent of a "possible problem" and 

that additional a~tention should be given to the escapeway. The 

inspector conceded that the respondent had made some effort to 

address this problem. 

With respect to the accumulated materials which were in the 

crosscut area where the escapeway was being rerouted, the testimony is in dispute as to whether or not the stopping at that 

location had been knocked down by the previous night shift or 

during foreman Morgan's day shift. The inspector believed that 

the stopping which concealed the accumulated materials had been 

taken down by the night shift, and although his notes do not 

specifically identify the stopping, he believed it was the stopping between the track entry and intake entry. Foreman Morgan 

testified that the belt stopping had been knocked down by the 

night shift, and that his day shift knocked down the stopping 

which concealed the materials. If the stopping had been knocked 

1659 
down by the night shift, the inspector believed that there was 

enough time to clean up the materials during the 2 or 3 hour 

interval between shifts. If the stopping were knocked down 

during Mr. Morgan's shift, the inspector conceded that there was 

insufficient time to clean up the accumulated materials. 

The inspector confirmed that he did not ask Mr. Morgan 

whether the stopping which had concealed the accumulated materials had just been knocked down on his shift, and he made no 

inquiries of the miners on the shift as to whether or not they 

had knocked the stopping down on their shift. The inspector 

conceded that it was quite possible that Mr. Morgan and Mr. Dobbs 

had one stopping in mind, and that he had another one in mind at 

the time of their discussions underground, and he agreed that the 

belt and track stopping should have been knocked down first. 

Assuming that this were the case, he further agreed that he would 

have been looking at the other stopping, which Mr. Morgan claimed 

was the stopping which concealed the materials, when he arrived 

on the section. 

The inspector confirmed that there is no time limitation 

with respect to the removal or clean up of accumulated materials, 

and given the fact that the escapeway was being rerouted, the 

uncertainty as to whether the stopping was knocked down during 

the night shift or day shift, and the fact that the respondent 

was establishing the ventilation on the section, I cannot conclude that the respondent was dilatory in removing the accumulated materials, or that it was aware of the materials over any 

inordinate period of time. Coupled with the fact that the 

respondent was making an effort to address the other conditions 

which obstructed the escapeway, I cannot conclude that the violation was the·result of any aggravated conduct on the part of the 

respondent. To the contrary, I conclude and find that the violation resulted from mine management's inattention and failure to 

exercise reasonable care. Under the circumstances, the inspector's unwarrantable failure finding IS VACATED, and the order IS 

MODIFIED to a section 104(a) citation with significant and substantial (S&S) findings, and as modified, the citation IS 

AFFIRMED. 

Size of Business and Effect of Civil Penalty Assessment on the 

Respondent's Ability to Continue in Business 

I conclude and find that the respondent is a large mine 

operator and that the civil penalty assessments for the violations in question will not adversely affect the respondent's 

ability to continue in business. 

History of Prior Violations 

The respondent's history of prior violations, as reflected 

by an MSHA computer print-out, (exhibit P-3), shows that for the 

1660 
period April 26, 1987 through April 25, 1989, the respondent paid 

$251,000 for 1,047 violations issued at the Martinka No. 1 Mine. 

One-thousand and sixteen (1,016), were for violations found to be 

significant and substantial (S&S), and twenty-five (25) were for 

violations of section 75.1704. No prior violations of section 

77.404(a), are noted• MSHA has not argued or suggested that the 

respondent's compliance record warrants any additional increases 

to its proposed civil penalty assessments, and I assume that it 

considered the respondent's history of compliance when the 

assessments were initially made. In any event, I have considered 

this compliance history in the assessments which I have made for 

the violations which have been affirmed. 

Good Faith Compliance 

The record reflects that the escapeway violation was abated 

within 2 or 3 hours of the issuance of the order on March 24, 

1989, by the removal of the accumulated materials and the building of bridges over the water-accumulations. With regard to the 

broken dozer pads violation, the record reflects that the condition had been corrected at the time the violation was issued. I 

conclude and find that both violations were timely abated by the 

respondent in good faith and I have taken this into 

consideration. · 

Negligence 

On the basis of my unwarrantable failure finding with 

respect to the broken dozer pads violation, which are incorporated by reference, I conclude and find that the violation 

resulted from a high degree of negligence on the part of the 

respondent. With respect to the escapeway violation, I conclude 

and find that the violation resulted from the respondent's failure to exercise reasonable care, and that this constitutes ordinary negligence. 

Gravity 

In view of my 11S&S 11 findings and conclusions, which are 

incorporated by reference, I conclude and find that both of the 

contested violations were serious. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, and 

taking into account the requirements of section llO(i) of the 

Act, I conclude and find that the proposed civil penalty assessment of $1,000, is reasonable and appropriate for a violation of 

mandatory safety standard 77.404(a), as stated in section 

104(qJ (2) Order No. 3117868, May 23, 1989. I further conclude 

and find that a civil penalty assessment of $675 is reasonable 

1661 
and appropriate for a violation of mandatory safety standard 

75.1704, as stated in the modified section 104(a) citation 

No. 2944318, May 24, 1989. 

Settled Violations 

The parties settled three of the contested section 104(d) (2) 

orders in this case (Nos. 3112683, 3112684, 3118284). MSHA filed 

a posthearing motion pursuant to Commission Rule 30, 29 C.F.R. 

§ 2700.30, seeking approval of the proposed settlement. Order 

No. 3118284 was modified to a section 104(a) citation, and the 

proposed civil penalty assessment was reduced from $1,000 to 

$395. With regard to Order No. 3112684, MSHA confirmed that the 

respondent has agreed to accept the findings of the inspector and 

has agreed to pay the full amount of the proposed civil penalty 

assessment of $950 for the violation in question. With respect 

to Order No. 3112683, MSHA has agreed to vacate the order. 

MSHA submitted a discussion and disclosure as to the facts 

and circumstances surround the issuance of the orders in question, and a reasonable justification for the settlement disposition of the violations. MSHA also submitted information 

pertaining to the six statutory civil penalty criteria found in 

section llO(i) of the Act, and it believes that the resulting 

cumulative civil penalty assessment of $1,345 for the two orders 

which have been settled is fair and reasonable and will ef f ectuate the purposes of the Act. 

After careful review and consideration of the pleadings, and 

the submissions in support of the motion to approve the settlement disposition of these orders, I conclude and find that it is 

reasonable and in the public interest. Accordingly, the motion 

is granted, and the settlement IS APPROVED. 

ORDER 

The responden~ IS ORDERED to pay the following civil penalty 

assessments for the aforementioned violations which have been 

affirmed and/or settled in this proceeding: 

Citation/Order No. 

3118284 

3117868 

2944318 

3112683 

3112684 

05/15/89 

05/23/89 

05/24/89 

05/30/89 

05/30/89 

1662 

30 C.F.R. Section 

75.220 

77.404(a) 

75.1704 

75.1403 

75.303 

Assessment 

$ 395 

$1,000 

$ 675 

Vacated 

$ 950 
Payment of the aforementioned civil penalties shall be made 

to MSHA within thirty (30) days of the date of this decision and 

order, and upon receipt of payment, this proceeding is dismissed. 

kA./40~ Administrative Law Judge 

Distribution: 

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Rebecca J. Zuleski, Esq., FURBEE, AMOS, WEBB & CRITCHFIELD, 

Attorneys at Law, 5000 Hampton Center, Suite 4, Morgantown, WV 

26505 (Certified Mail) 

/fb 

1663 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

AUG 61990 

WYOMING FUEL COMPANY, 

Contestant 

. . CONTEST PROCEEDINGS 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

. . 

. . 

DECISION 

Docket No. WEST 90-238-R 

Order No. 3077023; 6/12/90 

Golden Eagle Mine 

Mine ID 05-02820 

Appearances: Lawrence J. Corte, Esq., Lakewood, Colorado, for 

Lakewood, Colorado, for the Contestant; 

Robert J. Murphy, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for the Respondent. 

Before: Judge Morris 

This case is before me pursuant to section 105(d) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

seq., (the "Act"), to challenge an order issued under section 

107(a) of the Act to Wyoming Fuel Company ("WFC"). 

After notice to the parties an expedited hearing on the 

merits was held in Denver, Colorado, on June 26, 1990. 

- The parties filed post-trial briefs. 

Procedural Issues 

The judge believes certain procedural issues should be 

initially considered. 

WFC moved for an expedited hearing. The Secretary opposed 

the motion in this case as she did in other unrelated cases 

involving the same parties (WEST 90-112-R, WEST 90-113-R, 

WEST 90-114-R, WEST 90-115-R and WEST 90-116-R). 

The issue is again raised in this decision and the 

Commission is invited to consider the issue anew. 

1664 
To support of its motion for expedition, WFC relies on the 

statutory requirements set forth at section 107(a) of the Act. 

The cited section provides as follows: 

(e) Relief from orders; hearing; order; 

expedited proceeding. 

(1) Any operator notified of an 

order under this section or any 

representative of miners notified 

of issuance, modification, or 

termination of such an order may 

apply to the Commission within 30 

days of such notification for 

reinstatement, modification or 

vacation of such order. The 

Commission shall forthwith afford 

an opportunity for a hearing ••• 

and thereafter shall issue an 

order. based on findings of fact. 

vacating, affirming. modifying. or 

terminating the Secretary's order. 

The Commission and the courts may 

not grant temporary relief from the 

issuance of any order under 

subsection (a). 

(2) The Commission shall take 

whatever action is necessary to 

expedite proceedings under this 

subsection. (§ 107 (e), (1) and 

(2), Emphasis added). 

In opposition to the motion the Secretary states the section 

107(a) order in this case and other cases were modified to permit 

mining activity. The Secretary also contends that if all orders 

issued under section 107 were expedited on request, there would 

no longer be any capability for expeditious hearings. 

The Secretary further asserts the Congressional intent of 

section 107(a) is to assist operator's where an emergency 

situation exists. In short, the Secretary argues Congress 

intended to allow an expedited hearing only in the case of an 

active closure order, where the mine is not being allowed to 

produce and it suffering a great hardship as a result of an MSHA 

order. 

It is also urged that the matter of whether a hearing should 

be expedited rests with the sound discretion of the presiding 

judge. 

The Secretary also contends the Commission Rules are so 

structured that expedited hearings are allowed only in emergency 

situations. 

1665 
Discussion 

It is a basic rule of construction that where the language 

is clear the statute must be enforced as it is written unless it 

can be established that Congress clearly intended the words to 

have a different meaning. Chevron, USA v. NRDC, 467 U.S. 837, 

842-43, 104 S.Ct. 2778 (1984); United States Lines v. Baldridge, 

677 F.2d 940, 9.44 (D.C. Cir. 1982); Phelps Dodge Corp. v. FMSHRC, 

681 F.2d 1189, 9th Cir. (1982); Freeman United Coal Mining Co., 6 

FMSHRC 1577, 1578 (1984). 

The statutory requirement, stripped of surplus language, is 

that "any operator ••• notified of an order, etc., may apply 

within 30 days •.. for a vacation of such order, etc." In such a 

situation, "the Commission shall expedite· proceedings." 

It is uncontroverted here that an order was issued under the 

authority of section 107(a) of the Act. Further, the contest was 

filed within 30 days. 

The foregoing uncontroverted facts require that this case be 

expedited. I agree with the Secretary that Congress may have 

intended an expedited hearing only in the event of an active 

closure order. However, the wording of section 107 does not 

disclose such an intent. 

Further, the structure of the Commission's Rules do not 

support the Secretary. Commission Rule 52, 29 C.F.R. § 2700.52, 

provides as follows: 

§ 2700.52 Expedition of proceedings 

(a) Motions. A motion of a party to expedite 

proceedings may be made orally, with 

concurrent notice to all parties, or served 

and filed by telegram. Oral motions shall be 

confirmed in writing within 24 hours. 

(b) Timing of hearing. If the motion is 

granted, a hearing on the merits of the case 

shall not be scheduled with less than four 

days notice, unless all parties consent to an 

earlier hearing. 

A fair reading of the statute and the Commission rules 

indicate that expeditious hearings involving section 107(a) 

orders are generally not left to the discretion of the presiding 

judge; further, expedited hearings are not necessarily restricted 

to "emergency" situations. 

1666 
I agree the failure to read "emergency situation" into the 

Act and Rule 52 could render the expedited hearing process 

meaningless. However, the writer has never found the expedited 

hearing process to be burdensome, nor have any litigants 

attempted to "overload" the Commission with requests for 

expeditious proceedings. If this were to become a problem 

interfering with the Commission's duties of adjudicating disputes 

under the Mine Act, and Commission would no doubt amend Rule 52. 

In such circumstances the appellate courts would accord great 

deference to the Commission's interpretation of its own rules. 

Lucas Coal Company v. Interior Board of Mine Operations Appeal, 

522 F.2d 581 (1975). 

In sum, under the Mine Act, contestant is entitled to an 

expedited hearing when a section 107(a) order is involved. 

If the order here had been issued under section 104(d) of 

the Act there would be a totally different result. 1 Under 

section 105(B) (2), (30 u.s.c. § 815(b) (B) (2)], the Commission may 

grant temporary relief from a section 104(d) order only under 

very restrictive conditions. These are: 

(A) a hearing [before MSHA] has been held in 

which all parties were given an opportunity 

to be heard; 

(B) the applicant shows that there is 

substantial likelihood that the findings of 

the Commission will be favorable to the 

applicant; and 

(C) such relief will not adversely affect 

the health and safety of miners. 

No temporary relief shall be granted in the case of a 

citation issued under subsection (a) of (f) of section 

104. The Commission shall provide a procedure for 

expedited consideration of applications for temporary 

relief under this paragraph. 

In sum, I reaffirm my previous order granting WFC an 

expedited hearing. 

Stipulation 

At the commencement of the hearing the parties stipulated as 

follows: 

1 See Order in Medicine Bow Coal Co., WEST 90-117-R, March 13, 

1990. 

1667 
1. The -Golden Eagle Mine is owned by Wyoming Fuel Company 

and the mine is subject to the Act. 

2. In 1989, the mine produced 900,000 tons of coal. 

3. The Commission and Administrative Law Judge have 

jurisdiction over this matter. 

4. The imminent danger orders involved in this case were 

properly served an the operator and can be received in evidence. 

Summary of the Case 

The evidence concerning the underlying facts is 

uncontroverted. The conflict arises from the conclusions to be 

drawn from such facts. 

Donald L. Jordan and Steve Salazar, both experienced in 

mining, testified in the case. 

On June 12, 1990, MSHA Inspector Jordan was involved in a 

saturation inspection at the Golden Eagle Mine. The operation of 

this gassy mine involves a continuous miner development combined 

with a retreating longwall. 

At approximately 7:50 a.m., Inspector Jordan, Messers. 

Salazar, the general mine foreman, and Ralph Sandoval, a union 

escort, went to the northwest No. 1 tailgate section. 2 

As the group started into the section they were told not to 

enter the area. Section Foreman Kretoski had notified all 

personnel to· stay out; he had also posted the neck of the unit. 

The miners were being withdrawn because a methane concentration 

in excess of 1.5 percent had been detected. Mr. Salazar 

reaffirmed the order of withdrawal. Further, section mechanic 

Ben Chavez was on his way to deenergize the power. 

Messers. Jordan and Salazar then went to the No. 1 return 

and took air samples. They agreed the methane concentration in 

the area exceeded 1.5 percent. In fact, the concentration was 

1.7 percent. (Tr. 20, 22, 66) They continued on to the No. 4 

return. The methane concentrations fluctuated from .9 to 1 

percent. The belt entry concentration was two-tenths of one 

percent. Inspector Jordan and Mr. Salazar then drove to the face 

area. They found that a curtain in the No. 2 entry was choaking 

off most of the air. 

The methane concentrations at the face ranged between 0.3, 

0.5 and 0.8 percent. Mr. Salazar indicated it would probably 

2 This area is circled on the mine map, Exhibit C2. 

1668 
take the rest of the day shift for the concentration to go below 

one percent. 

After returning from the face the two men walked 

a distance of about 1400 feet. In that distance they 

methane concentration varied from 1.4 to 1.7 percent. 

89) 

the entry, 

found the 

(Tr. 86-

Inspector Jordan stated he would have to write a section 

107(a) Order so he would be in control of the situation. When 

the order was written WFC had already withdrawn the personnel and 

deenergized the power. (Tr. 69) Mr. Salazar did not believe an 

imminent danger exited. (Tr. 71-84) 

At 2:00 p.m., the concentration was 1.3 percent. Inspector 

Jordan modified his order and he authorized production to resume 

if the concentration went below one percent. At 4:30 p.m., 

mining resumed when the concentration dropped between 0.8 to 0.9 

percent. 

The graveyard shift mined until 4:00 a.m. At that time the 

methane escalated to 1.4 percent. Mr. Salazar informed the crew 

not to let it reach 1.5 percent; the crew was withdrawn. 

On the 19th, MSHA Inspector Mel Shively wrote a section 

104(a) citation when he found the methane concentration was still 

holding at 1.2 percent. on June 21st at approximately 4:30 p.m., 

Inspector Jordan abated his prior section 107(a) order. 

When the order was originally written management was 

complying with 30 C.F.R. § 75.309(b). 

In Mr. Salazar's opinion, Inspector Jordan issued the 

section 107(a) order as a control device. Inspector Jordan 

believed he was complying with his obligations under the Mine Act 

when he issued the order. 

Discussion 

This case involves the construction of relevant portions of 

the Act. 

Section 107(a), under which the order here was issued, 

provides for procedures to counteract dangerous conditions. The 

section, in part, provides as follows: 

Procedures to Counteract Dangerous Conditions 

Sec. 107. (a) If, upon any inspection or 

investigation of a coal or other mine which is subject 

to this Act, an authorized representative of the 

Secretary finds that an imminent danger exists, such 

1669· 
representative shall determine the extent of the area 

of such mine throughout which the danger exists, and 

issue an order requiring the operator of such mine to 

cause all persons, except those referred to in section 

104(c), to be withdrawn from, and to be prohibited from 

entering, such area until an authorized representative 

of the Secretary determines that such imminent danger 

and the conditions or practices which caused such 

imminent danger no longer exist. The issuance of an 

order under this subsection shall not preclude the 

issuance of a citation under section 104 or the 

proposing of a penalty under section 110. 

On the facts presented here, it would appear that no 

condition of imminent danger existed within the ordinary meaning 

of section 107(a). The methane concentration had not reached an 

explosive range. In addition, the inspector and the mine 

superintendent walked inby No. 1 entry for 1400 feet. The 

methane concentrations in the walk remained constant at.1.4 

percent to 1.7 percent. However, the fact that the two men 

walked the entry indicates they both believed no condition of 

imminent danger existed. 

Congress has legislated many facets of mining. One such 

mandate is set forth in 30 u.s.c. § 863(h) (2) which provides: 

(2) If, when tested, a split of air returning from 

any working section contains 1.5 volume per centum or 

more of methane, all persons except those persons 

referred to in section 814(d) of this title, shall be 

withdrawn from the area of the mine endangered thereby 

to a safe area and all electric power shall be cut off 

from the endangered area of the mine, until the air in 

such split shall contain less than 1.0 volume per 

centum of methane. [Emphasis added] 

The above statutory provision has also been codified in the 

Secretary in regulations at 30 C.F.R. § 75.309(b). 

Whether the described methane concentrations are held to be 

a "per se imminent danger" (as ruled by Judge Joseph B. 

Kennedy~ or a Congressionally mandated imminent danger is not 

critical to a resolution of the issues. 

The meaning of the foregoing statutory provisions is 

amplified by the legislative history of the 1969 Act. In 

reviewing Section 204(i) (2) the Senate Committee stated as 

follows: 

3 Consolidation Coal Company v. Secretary of Labor, 4 FMSHRC 

1960 (1982). 

1670 
This section requires that men be withdrawn by the 

operator or inspector, if he is present, and power shut 

off from a portion of a mine endangered by a split of 

air returning from active underground workings 

containing 1.5 percent of methane. 

The presence of 1.5 percent of methane in the air 

current returning from active underground working 

places indicates that considerably larger amounts of 

methane may be accumulating in the air at places in the 

mine through which the current of air in such split has 

passed. Safety requires that employees be withdrawn 

from the portion of the mine which is endangered by the 

possibility of an explosion of any such accumulation of 

methane, and that all electric power be cut off from 

such portion of the mine, until the cause of the high 

percentage of methane in such returning air is 

ascertained and the quantity of methane in such 

returning air is reduced to no more than 1.0 percent. 

Legislative History of the Federal Coal Mine Haalth and 

Safety Act of 1969, at 185. To like effect see also, CF&I Steel 

Corporation, 3 FMSHRC 2819, 2823 (1981) (Boltz, J.). 

WFC's initial argument is that the presence of 1.7 percent 

methane does not trigger a section 107(a) order because there can 

be no per se imminent dangers under the Act. In support of its 

position WFC relies on the frequently stated tests of imminent 

danger. Old Ben Coal Corp. v. Interior Board of Mine Operations 

Appeals, 523 F.2d 25, 32 (7th Cir. 1975) (quoting Freeman Coal 

Mining Corp., 2 IBMA 197, 212 (1973), aff'd sub nom. Freeman Coal 

Mining Co. v. Interior Board of Mine Operations Appeals, 504 F.2d 

741, 743 (7th Cir. 1974)). Rochester & Pittsburgh Coal Co., 11 

FMSHRC 2159, 2164 (1989). 

WFC's argument should be addressed to the Congress, not to 

the Commission. -The statute, as stated above, clearly defines a 

1.5 percent concentration methane to be an area of the mine that 

is endangered. It requires withdrawal of all miners from such an 

area. 

In sum, I agree with Inspector Jordan's view that: 

••• when I encounter 1.5% methane regardless of the 

situation, if I am in fact present, that I am obligated 

to issue an imminent danger [order] until the imminent 

danger has in fact been removed (Tr. 37). 

The cases relied on by WFC address the issue of "imminent 

danger." However, more critically, these cases do not involve 

methane concentrations exceeding 1.5 percent. 

1671 
The case of Mid-Continent, 1 IBMA 250, also cited by WFC, 

supports the Secretary and not WFC. In the cited case, the Board 

stated that "neither the Act nor the Regulations provide that a 

mere presence of methane gas in excess of 1.0 volume per centum 

is, per se, a violation." 1 IBMA at 253. However, as noted, 

Congress has mandated that 1.5 percent methane requires remedial 

action by the operator as well as the inspector, if he is 

present. 

Based on Mid-Continent, WFC further suggests a method of 

enforcing § 75.309 without the need of resorting to a section 

107Ca) order. 

MSHA can consider WFC's proposal, but this case is not a 

rule-making proceeding, but a contest concerning the validity of 

the order issued by the Secretary's representative. 

WFC also argues that the Secretary's per ~ imminent danger 

rule cannot be reconciled with pending changes proposed in her 

regulations. 4 

WFC states that, in her proposed changes to the regulations, 

the Secretary does not require miners to be withdrawn until the 

methane concentration attains 2.0 percent. 54 Fed. Reg. at 2415. 

I agree. It appears the Secretary's proposed regulations, 

not yet enacted, clarify, reorganize, and update existing ventilation standards promulgated more than 15 years ago. The proposal also recognizes new technology available in mines. 

The Secretary has broad rule-making powers. However, this 

case is necessarily determined on existing requirements and not 

on the proposed changes. The changes, which are in the proposal 

state, may never be adopted. 

For the foregoing reasons, I conclude that Inspector Jordan 

properly issued Order 3077023. Accordingly, I enter the 

following: 

ORDER 

The contest of Order No. 3077023 is DISMISSED. 

Law Judge 

4 54 Federal Register 2383, 2415 Cl988). 

1672 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 81990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CROSSGATES MINING COMPANY, 

INCORPORATED, 

Respondent 

DECISION 

Docket No. KENT 89-209 

A. C. No. 15-13541-03556 

Docket No. KENT 89-235 

A. C. No. 15-13541-03557 

Docket No. KENT 89-236 

A. C. No. 15-13541-03558 

Docket No. KENT 90-66 

A. C. No. 15-13541-03560 

No. 1 Mine 

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, 

u. s. Department of Labor, Nashville, Tennessee, 

for the Secretary~ 

Mr. Dale A. Anderson, Vice President Administration, 

Crossgates Mining Company, Incorporated, Ashland, 

Kentucky, for the Respondent. 

Before: Judge Weisberger 

These cases .are before me upon petitions for assessment of 

civil penalty under Section 105(d) of the Federal Mina Safety and 

Health Act of 1977 (the Act). Petitioner had filed a joint 

motion, with regard to Docket Nos. KENT 89-209, 89-335, and 

89-236, to approve a settlement agreement and to dismiss these 

cases. A reduction in penalty from $5,924 to $2,962 is proposed. 

Initially, the Motion was not granted, and a hearing was 

scheduled to allow the Parties to present evidence to support the 

settlement. At the hearing, Petitioner made a' Motion, agreed to 

by Respondent, to approve a settlement of Docket No. KENT 90-60, 

proposing a reduction in penalty from $1,362 to $681. 

I have considered the representations and documentation 

submitted in these cases, especially the documentation ~nd 

testimony presented at the hearing, on July 24, 1990, with regard 

to Resoondent's financial condition. I conclude that the 

proffe~ed settlement is appropriate under the criteria set forth 

in Section llO(i) of the Act. 

167~ 
WHEREFORE, the motion for approval. of settlement is GRANTED, 

and it is ORDERED that Respondent pay a penalty of $3,643 within 

30 days of this order. 

~it:; Administrative Law Judge 

Distribution: 

Mary Sue Taylor, Esq., Office of the Solicitor, U. S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Mr. Dale A. Anderson, Vice President Administration, Grossgates 

Mining Company, Incorporated, P. O. Box 989, Ashland, KY 

41105-0989 (Certified Mail) 

dcp 

1674 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 8 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

INFERNO COALS INCORPORATED, 

Respondent 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-6 

A.C. No. 15-11529-03524 

: H-8 Mine . . 

. . 

DECISION 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner~ • 

Charles J. Baird, Esq., Baird and Baird, P.S.C., 

Pikeville, Kentucky for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to Section 105Cd) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et seq., the "Act," charging Inferno Coals Incorporated 

(Inferno) with 20 violations of mandatory standards and 

proposing civil penalties of $2,829 for the a'ileged violations. 

The general issue before me is whether Inferno violated the 

cited regulatory standards and, if so, the appropriate civil 

penalty to be assessed in accordance with Section llOCi) of the 

Act. 

- Respondent failed to appear at the scheduled hearings but 

filed pleadings captioned "M9tion to Withdraw Notice of 

Contest" with respect to 19 of the 20 citations at bar. At the 

hearings Petitioner presented testimony and documentation 

adequate to support its proposed penalties for these 19 

violations within the framework set forth in Section llOCi) of 

the Act. Respondent's "Motion to Withdraw Notice of Contest" 

is deemed to be a motion for approval of settlement and in 

light of the evidence presented it is granted. An order will 

therefore be incorporated as part of this decision directing 

that Respondent pay the penalties proposed for the subject 19 

violations. 

1675 
Respondent also filed a "Joint Stipulation of Facts" 

regarding the remaining citation, No. 2784600. As amended at 

hearing the proposed stipulations were accepted by the 

Secretary. At hearings the Secretary also presented 

testimentary and documentary evidence in support of her claim 

that a factual basis existed to sustain the allegations in 

Citation No. 2784600 and that a violation did in fact occur. 

See Co-op Mining Co., 2 FMSHRC 3475 (1980). The Secretary also 

produced evidence in support of her proposed penalty of $600 

for that violation. 

According to supervisory MSHA Inspector John South, 

Inferno was previously cited on January 5, 1989, for a 

violation of the same mandatory standard cited at bar Ci.e. 

30 C.F.R. § 48.10) after Inferno had failed to pay 14 miners 

for the required safety training (See Exhibit G-22). During 

his investigation of events leading to that citation Inspector 

South was told by one of Inferno's owners, James Salyers, that 

in his 11 years in the coal mining business he had never paid 

any of his employees for the MSHA required safety training. 

However, according to Inspector South, Mine Superintendent 

Jackie Bartley told him that he (Bartley) had been aware of the 

necessity to pay miners for such safety training and had 

previously told Salyers of this requirement. 

According to Inspector South, Inferno abated the January 5 

citation by compensating the 14 miners for their lost pay, but 

thereafter withheld from the "bonus pay" of 9 of these 14 

miners plus 5 additional miners who had attended annual 

refresher training on subsequent dates, amounts equal to the 

compensation they were paid for the training. Accordingly on 

July 28, 1989, Citation No. 2784600 was issued by Inspector 

South. That Citation reads as follows: 

Harry Mullins, Michael Fleming, Ronald Ratliff, 

Ronald England, James E. Charles, Russell Ratliff, 

John H. Allen, Donald Saunders, and Bennett Justice 

attended Annual Ref re sher ·rraining on December 3, 

1988, and received compensation for the subject 

training hours. 

Larry Coleman, Frank J. Stanley, Alfred Adkins and 

Randy Hill attended Annual Refresher Training on 

December 17, 1988, and received compensation for the 

subject training hours. 

James Billiter attended Annual Refresher training on 

December 31, 1988, and received compensation for the 

subject training hours. 

1676 
The compensation received for the subject training 

was witheld in the same amount from the above listed 

employee's bonus pay received by the subject 

employees on June 30, 1989. 

The cited standard, 30 C.F.R. § 48.10, provides as 

follows: 

Ca) training shall be conducted during normal working 

hours; miners attending such training shall receive 

the rate of pay as provided in Section 48.2Cd) 

(definition of normal working hours of this sub-part A). 

Cb) if such training shall be given at a location 

other than the normal place of work, miners shall be 

compensated for the additional cost, such as mileage, 

meals and lodging, they may incur in attending such 

traiping sessions. 

Inferno apparently argues that because the issuance of a 

"bonus" to miners was voluntary on its part and above .and 

beyond any required payment to its employees, it had the right 

to withhold payment of this i•bonus" to those miners taking the 

MSHA mandated annual refresher training in the precise amount 

of the compensation paid to the miners attending such training. 

However, since it is not disputed that the subject miners would 

have received the full "bonus" but for their attendance at the 

legally mandated annual refresher training it is clear that 

Inferno violated the standard at 30 C.F.R. § 48.10 as alleged. 

Since Inferno management clearly knew, following its 

initial abatement of the January 5, 1989, citation, of the 

regulatory requirement to compensate miners for their required 

safety training, its subsequent attempt to recoup that 

compensation from those miners through a transparent 

acc.ounting subterruge, Inf er no is chargeable with an 

intentional violation--or, within the framework of the criteria 

under section llOCi), the highest negligence. In addition, 

since Inferno continued to refuse to compensate the subject 

miners on the basis of this transparent subterfuge unti+ a 

section 104Cb) "failure to abate" withdrawal order was issued, 

it clearly did not abate the violation in good faith. The 

violation was also serious in that the repeated failure to 

compensate miners for their required safety training would 

clearly tend to discourage participation in that important 

training. 

Under the circumstances, and considering all the criteria 

under Section llO(i) of the Act, I find that a civil penalty of 

1677 
$600 is indeed appropriate for the viol~tion charged in 

Citation No. 2784600. 

ORDER 

. { 

Inferno Coals Incorporated is hereby directed to pay 

proposed civil penalties of $2,829 in full within 30 days 

the date of thi~ decision. ''\ 

l

r, I .- I 

I -I· 1 \ 

/ · 

/ ,, \v J, ,/'- _, .\I I \ 

Ga.jy Melic~ ., -

Administrative Law Judge 

1-. 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. 

Depar~ment of Labor, 2002 Richard Jones Road, Suite B-201, 

Nashville, TN 37215 (Certified Mail) 

the .•. 

Charles J. Baird, Esq., Baird and Baird, P.s.c., Inferno Coal 

Inc., 415 Second Street, P.O. Box 351, Pikeville, KY 41501 

(Certified Mail) 

nb 

1678 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JOHN ERAZMUS, 

v. 

CONSOLIDATION 

JOHN WEIGAND, 

v. 

CONSOLIDATION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 91990 

JR., DISCRIMINATION PROCEEDING 

Complainant . . 

. 

. Docket No. WEVA 90-10 8-D . . MORG-CD 90-04 

COAL COMPANY, . . Respondent . . Ireland Mine 

JR., . . DISCRIMINATION PROCEEDING 

Complainant 

Docket No. WEVA 90-109-D . . MORG-CD 90-05 

COAL COMPANY, . . Respondent Ireland Mine .. 

ORDER LIFTING STAYS AND DISMISSING PROCEEDINGS 

Before: Judge Melick 

Complainants request approval to withdraw their 

complaints in the captioned cases for the reason that an 

arbitrator has awarded them appropriate remedies for the 

discrimination alleged in these cases. Under the 

circumstances herein, the request is granted. 

29 C.F.R § 2700.11. The Stay Orders previously 1 issued are 

accordingly now lifted and these cases are ther\'f ore 

dismissed. {. (~.I 

J

u\ \.,'II 

i , -\ .. I , 1. , \,,. 

\ , ~ _,. "v \ I I I / i ,I\ / '' '-.. ·-

G y Melick ·- , \i . ; v · L 

Administrrutive Law J~dg~ 

I Distribution: i ~ i 

Walter J. Scheller, III, Esq., Conso1idation Cdal Company, 

1800 Washington Road, Pittsburgh, PA 1 15241 (Certified Mail) 

Mr. Thomas M. Myers, District Six, UMWA, 56000 Dilles Bottom, 

Shadyside, OH 43947 (Certified Mail) 

Mr. David Hudson, Superintendent, Consolidation Coal Company, 

P.O. Box 587, Moundsville, WV 26041 (Certified Mail) 

nt 

1679 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, ,.10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 1O1990 

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), · · Pe ti ti oner 

v. 

DRAVO BASIC MATERIALS CO., 

INCORPORATED, 

Respondent 

and 

R & S MATERIALS, INC., 

Respondent 

. . 

. . 

: 

. . Docket No. SE 90-86-DM 

MD 90-03 

: Selma Mine . . 

. . 

. 

•· 

. . 

DECISION 

Appearances: William Lawson, Esq., U.S. Department of Labor 

Office of the Solicitor, Birmingham, AL, for the 

Secretary; 

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 

Pittsburgh, PA, for Dravo Basic Materials, Co., 

Inc., 

Harold Bowron, Jr., Esq., Balch & Bingham, 

Birmingham, AL, for R & S Materials, Inc. 

Before: Judge Fauver 

The Secretary of Labor brought this proceeding on behalf of 

Alonzo Walker under § 105(c) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seq., contending that he 

was discharged in violation of that section. 

The original complaint was against Dravo Basic Materials 

co., Inc., as was an application for temporary reinstatement, 

which was granted pending a hearing and decision on the merits of 

the complaint. 

The case was set for hearing on the merits on May 22, 1990. 

On May 14, 1990, the Secretary moved to amend the complaint 

to add R & S Materials, Inc., as a respondent and to assess a 

civil penalty for a violation of § 105Cc> of the Act. 

1680 
On May 21, 1990, Dravo filed an answer to the amended 

complaint in the event the motion to amend were granted, and 

R & S filed a motion to strike the motion to amend the complaint, 

also with an answer to the amended complaint in the· event the 

motion to amend were granted. 

On the same date, the judge held a telephone conference with 

the attorneys for the Secretary, for Dravo, and for R & s. The 

judge advised the parties that he would hear oral arguments the 

following morning on the Secretary's motion to amend the 

complaint and that, if the motion were granted, R & s would be 

entitled to a continuance to prepare for a hearing on the merits. 

R & S stated that it was desirous of proceeding with the hearing 

on the merits, scheduled for the following day, if its motion to 

strike the motion to amend the complaint were denied. 

On May 22, 1990, after oral arguments, the motion to amend 

the complaint was granted. The amended complaint and 

Respondents' answers thereto were deemed to be filed on the dates 

they were previously received by the judge's office. In light of 

R & S's desire to proceed to hearing on the merits that day, and 

its waiver of procedural and due process objections, a hearing on 

the merits was held on May 22 and 23, 1990. 

This decision is limited to the issue whether Walker was 

discharged in violation of § 105Cc) of the Act, reserving for a 

supplemental decision issues of successor in interest, damages, a 

civil penalty and other relief. 

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 Finding of Fact 

and further findings in the Discussion below: 

FINDINGS OF FACT 

1. R & ,S Materials , Inc • , aper a ted an open pit sand and 

gravel mine, known as the Selma Mine, until January 12, 1990, 

when the mine was acquired from R & S by Dravo Basic Materials 

Co., Inc., l/ 

l/ Further findings of fact concerning the issue of Dravo's 

responsibility as a successor in interest are deferred pending 

further proceedings. 

1681 
2. At the beginning of the day on January 10, 1990, Alonzo 

Walker reported to work at the Selma Mine where he was employed 

as a dragline operator. To get to the dragline, Walker rode a 

motor grader driven by Jimmy Callen. 

3. During the trip to the dragline, Callen asked Walker if 

he ever had problems of dizziness or shortness of breath while 

operating the backhoe, indicating that he had such ailments the 

day before. Walker replied that he did not have such problems 

with the backhoe but that he had not operated the machine for 

some time, approximately four or five months.2/ Callen, the 

regular motor grader operator, operated the backhoe a half shift 

the day before and at that time experienced difficulty in 

breathing and a burning sensation in his nose. He had not 

expressed such complaints previously on the backhoe or any other 

machine. 

4. In the morning on January 10, Walker operated the 

dragline. Callen again was temporarily assigned to operate the 

backhoe, because the regular operator, Randy Hamilton, had not 

arrived at the mine. Callen again experienced difficulty in 

breathing and a burning sensation in his nose while operating the 

backhoe. The door to the backhoe was closed, so he opened it to 

get more air in the cab. This did not help. 

5. During the morning, an MSHA mine inspector came to 

Callen's worksite as part of a mine inspection. He briefly 

looked at the backhoe, but did not inspect it for noxious fumes. 

He was not aware of Callen's complaints. 

6. Callen operated the backhoe until lunch time, when he 

was relieved for lunch by Randy Hamilton, his supervisor. 3/ 

Callen told Hamilton that he was having trouble breathing and a 

burning sensation in his nose. Hamilton understood Callen's 

complaint to mean that his condition was a result of operating 

~/ All employees would occasionally operate other equipment, on 

an as-needed basis. 

3/ Randy Hamilton was a working foreman who regularly operated ~he backhoe. In the absence of the Mine Superintendent, Hamilton 

was in charge of the mine. 

1682 
the backhoe (Tr. 248) • .!/ Hamilton replied to Callen's complaint 

by saying that when the weather was hot and dusty he had similar 

symptoms while operating the backhoe. Hamilton did not offer to 

inspect the backhoe or have it tested for noxious fumes. 

7. When Callen was relieved for lunch he went to the hopper 

area (where some of the employees generally met to eat lunch) to 

try to rest and to catch his breath. Walker was there and Callen 

again complained to him about his physical ailments while 

operating the backhoe. Walker advised Callen to go to the Mine 

Superintendent, Roger Campbell, and tell him about the beliefs he 

had concerning the backhoe. 

8. Callen went to the office, and told Campbell that he 

could hardly breathe, that he had a burning sensation in his 

nose, that he needed to see a doctor, and that he believed 

"something was on [wrong with] the backhoe" (Tr. 116, 186, 369: 

Ex. C-9). Campbell immediately sent Callen to a hospital on 

workmen's compensation. 

9. When Callen did not return to the backhoe after lunch, 

Hamilton went to the off ice and asked Roger Campbell what had 

happened to him. Campbell told Hamilton that Callen had been 

taken to the hospital. Both Campbell and Hamilton knew that 

Callen was taken to the hospital because he had breathing 

diffulties and a burning nose sensation while operating the 

backhoe. 

10. After his own lunch period, Hamilton noticed the 

dragline was not operating and decided to assign Alonzo Walker to 

operate the backhoe the rest of the shift. Walker was in the 

hopper area where he, Robert Baldwin and Leon Kent had just eaten 

lunch. 

4/ At the previous hearing on the application for temporary 

reinstatement, Hamilton had testified that Callen asked him 

whether he had shortness of breath or a burning sensation in the 

nose while operating the backhoe. Transcript in Docket No. SE 

90-63-DM, page 59. At the hearing on the merits, he first 

testified that Callen did not associate his symptoms with 

operating the backhoe (Tr. 246), but when confronted with his 

earlier testimony, Hamilton acknowledged that he understood 

Callen's complaints to be directed at the backhoe. "I figured it 

was about the backhoe since he was on it and everything." Tr. 

248. 

1683 
11. Hamilton went to the hopper area and told Walker that he 

wanted him to operate the backhoe. Walker asked him where Jimmy 

Callen was. Hamilton said he had gone to the hospital. Walker 

replied that he "would rather have somebody check it out because 

Jimmy was complaining about it" (Tr. 29-30). Hamilton replied 

that there was "nothing wrong with it," and Walker replied "I'd 

rather have a mechanic to check it out" (Tr. 30). Hamilton 

started walking toward his truck, and told Walker to either 

operate the backhoe or go to the house <meaning he would be 

fired). Walker then asked Hamilton where Superintendent Campbell 

was. Hamilton did not respond. Walker caught a ride on a dump 

truck down to the dragline, to operate that machine •. 

12. Hamilton left the hopper area, looking for Campbell. 

He found him and told him Walker refused to run the backhoe. 

Campbell, with Hamilton, proceeded to the dragline to talk to 

Walker. At the dragline Campbell asked Walker why he did not 

operate the backhoe and Walker said there was a problem with the 

backhoe, that "Jimmy Callen got sick on the backhoe" (Tr. 32) and 

he wanted to have it checked out. Campbell said there was 

nothing wrong with it and to either run it or look for another 

job. Walker did not run the backhoe, and understood he was fired. 

He went to the off ice, where Campbell gave him a termination slip 

that stated the following reason for his discharge: "Asked to run 

backhoe and refused." Ex. C-2. When Walker read the form he 

said there were two other men who could run the backhoe and asked 

Cambpell, "if there ain't nothing wrong with it [the backhoe], 

how come they couldn't run it?" Tr. 35. Campbell then 

instructed his secretary to type the following additional 

language on the slip: "Dragline operator. Alonzo Walker stated 

that there were four other men capable of running backhoe." Tr. 

35; Ex. C-2. Walker, however, had not stated four other men were 

capable of running the backhoe. Also, he had asked Campbell to 

put his safety complaint about the backhoe on the personnel form 

but Campbell did not do so. 

13. R & S Materials, Inc.'s Safety Manual, handed to each 

employee, stated in Rule No. 3(b): 

It shall be the duty of every employee to 

promptly report to his supervisor any 

hazardous condition or practice that 

may cause injury or property damage. 

14. Callen stayed in the hospital about a week. His 

medical problem was apparently a lung disorder, which was 

treated. He returned to work and was operating the backhoe and 

other equipment without difficulty at the time of the hearing. 

1684 
15. At the request of Mine Superintendent Campbell, MSHA 

tested the backhoe for noxious fumes on January 12. The tests 

were negative. 

DISCUSSION WITH FURTHER FINDINGS 

The central issue is whether Walker was unlawfully 

discharged for engaging in a protected refusal to work under 

§ 105(c)(l) of the Act.~/ 

A miner may refuse to work under that section if he has a 

good faith, reasonable belief that a hazardous condition exists. 

Northern Coal Company, 4 FMSHRC 126, 128 (1982). The "belief 

must be reasonable, and • • • miners may rely on such indications 

of conditions as seemingly trustworthy reports from others and 

earlier conditions in the mine." Id. at 136. 

Where practical, a miner refusing work should communicate to 

a representative of the operator his belief that a hazardous 

condition exists. "Simple, brief communication will suffice, and 

the 'communication' can involve speech, action, gesture, or tying 

in with others' comments." The purpose of the rule "is promoting 

safety and [the Commission] will evaluate communication issues in 

a common sense, not legalize, manner." Id. at 133, 134. 

~/ Section 105(c)(l) provides: 

"No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination against 

or otherwise interfere with the exercise of the statutory rights 

of any miner, representative of miners or applicant for 

employment in any ~oal or other mine subject to this Act because 

such miner, representative of miners or applicant for employment 

has filed or made a complaint under or related to this Act, 

including a complaint notifying the operator or the operator's 

agent, or the representative of the miners at the coal or other 

mine of an alleged danger or safety or health violation in a coal 

or other mine or because such miner, representative of miners or 

applicant for employment is the subject of medical evaluations 

and potential transfer under a standard published pursuant to 

section 101 or because such miner, representative of miners or 

applicant for employment has instituted or caused to be 

instituted any proceeding under or related to this Act or has 

testified or is about to testify in any such proceeding, or 

because of the exercise by such miner, representative of miners 

or applicant for employment on behalf of himself or others of any 

statutory right afforded by this Act." 

1685 
To determine "reasonableness" of a work refusal, the miner's 

safety concern must be viewed from the miner's perceptive at the 

time of the work refusal, and the miner need not objectively 

prove that an actual hazard existed. Union Carbide· corp., 5 

FMSHRC 993, 997-98 (1983); River Hurricane Coal Co., 5 FMSHRC 

1529, 1533-34 (1983); Haro v. Magna Cooper Co., 4 FMSHRC 1935, 

1944 (1982). "Good faith belief simply means honest belief that 

a hazard exists." United Castle Coal Company, 3 FMSHRC 803, 810 

(1981). 

Generally, in order to establish a prima facie case of 

discrimination under § 105(c) a complaining miner bears the 

burden of proving that (1) he or she engaged in protected 

activity and (2) the adverse action complained of was motivated 

in any part by that activity. 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); Hecla-Day 

Mines Corporation, 6 FMSHRC 1842 (1984); Phelps Dodge Corp., 3 

FMSHRC 2508, 2510-2511 (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 and would have taken the adverse 

action on those grounds alone. The operator bears the burden of 

proof with regard to the affirmative defense. Haro v. Magma 

Copper Company, supra. The ultimate burden of persuasion does 

not shift from the complainant. United Castle Coal Company, 

supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); 

and NLRB v. Transportation Management Corporation, 462 U.S. 393 

(1983) (where the Supreme Court approved the NLRB's virtually 

identical analysis for discrimination cases arising under the 

National Labor Rela~ions Act). 

Applying these principles, I find that Walker had a good 

faith, reasonable belief that operating the backhoe presented a 

hazard and he communicated that belief to his supervisors by his 

refusal to operate the machine until his employer had it checked 

out for hazardous conditions. 

The supervisors and Walker were all aware that Callen had 

complained of dizziness, breathing problems, and a burning 

sensation in his nose while operating the backhoe, and that he 

was sent to the hospital because of this condition. 

It was reasonable for Walker to believe that the backhoe 

presented a hazard and may have been leaking fumes or had other 

1686 
defects that caused Callen's condition. Walker was protected by 

§ 105(c) of the Act in requesting that the machine be checked for 

hazards before he would operate it. Walker was not a mechanic and 

did not have the training, skills, or equipment to test the 

machine for noxious fumes, emissions, or other hazards that may 

have caused Callen's symptoms. He was not trained or qualified 

to judge whether Callen's condition was due to defects of the 

backhoe or to independent health causes such as a heart attack or 

a lung disease. He was therefore not obligated to examine the 

backhoe to determine whether it was safe. Nor was he required to 

operate it and "wait and see" if he would become sick and require 

hospitalization. It was not reasonable for his supervisors to 

order him to run the machine without adequate tests to ensure his 

safety. 

The hospital physician who examined Callen suggested that 

the equipment and work area be checked for possible noxious fumes 

or chemicals that could cause Callen's condition. When the Mine 

Superintendent checked the equipment and work area, he saw 

nothing wrong but still could not determine whether or not 

odorless noxious fumes were escaping from the equipment. He 

therefore requested MSHA to bring in an expert with the proper 

technical skill and equipment to test for noxious fumes. 

The fact that such tests proved negative does not alter the 

reasonableness and good faith of Walker's work refusal. As 

stated, a good faith belief "simply means honest belief that a 

hazard exists." United Castle Coal Co., supra, 3 FMSHRc· 803, 810 

(1981). It does not require objective proof that a hazard 

actually existed. 

Hamilton testified that Walker did not ask him to check out 

the backhoe, but merely stated he "runs the dragline, not the 

backhoe" (Tr. 24). I do not find this testimony to be credible. 

Other witnesses corroborated Walker's testimony that he asked 

Hamilton to check out the backhoe. On balance, I credit Walker's 

testimony as to what he stated to Hamilton. Respondent contends 

that noise at the hopper may have drowned out Walker's responses 

to Hamilton, and that Walke~ had a duty to make any safety 

complaint clearly heard and understood by his supervisor. I find 

the noise factor to be a non-issue in this case. Hamilton said 

he had no difficulty hearing the words of Walker. Walker had no 

difficulty hearing Hamilton. The difference between them is 

their testimony of what was said, and I find Walker's testimony 

to be more credible and convincing than Hamilton's. 

Campbell testified that when Callen complained to him about 

difficulty in breathing and a burning sensation in his nose 

Campbell did not know that Callen was complaining about the 

backhoe. I do not find this testimony to be credible. 

1687 
Campbell's secretary, Annette York, testified that she was 

present when Callen came· in and complained to Campbell about the 

ailments he was suffering from operating the backhoe. Tr. 368, 

369. Campbell's testimony is also refuted by MSHA Inspector 

Kelly, who testified that on January 12 he interviewed Campbell 

and Campbell stated that Callen had told him he had trouble 

breathing and a burning sensation in his nose while operating the 

backhoe and had.tried operating the backhoe with the door open 

but that did not help. Tr. 186, 187; Ex. C-9, p.3. Finally, 

Campbell's testimony is refuted by Callen himself, who testified 

that he told Campbell that he believed there was "something on 

[wrong with] the backhoe" (Tr. 116). 

Campbell also testified that Walker flatly refused to 

operate the backhoe, with no explanation. Tr. 459-461. I do not 

find this testimony to be credible and reasonable. When Campbell 

approached Walker at the dragline, this was Walker's last chance 

to plead his case for refusing to operate the backhoe. He had 

asked Hamilton where Campbell was, indicating his desire to 

discuss the situtation with him. I credit Walker's account of 

his statements to Campbell, both at the dragline and in Cambell's 

office. 

On balance, I find that a preponderance of the reliable 

evidence proves that Walker's work refusal was protected by § 

105(c) of the Act. His discharge was therefore a violation of 

that section. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction in this proceeding. 

2. The discharge of Alonzo Walker on January 10, 1990, by 

R & S Materials, Inc., violated§ 105(c)(l) of the Act. 

ORDER 

1. This decision shall not become a final disposition of 

this matter until a supplemental decision and final order are 

issued. 

2. The parties shall have until September 5, 1990, to 

submit proposed findings and conclusions, with supporting 

arguments, concerning: 

Ca) Issues of liability of Respondent Dravo Basic 

Materials, Co., Inc., as a successor in interest. 

Cb) Civil penalty or penalties to be assessed under 

§ llO(i) of the Act. 

1688 
Cc) Relief to be accorded to Alonzo Walker. 

Cd) Any other matters the parties believe should be 

addressed to reach a final disposition of this 

proceeding. 

3. If necessary, a supplemental evidentiary hearing will be 

held on factual issues raised in the parties' proposals on 

damages. 

4. The previous order of temporary reinstatement shall 

remain in force pending a final decision. 

Distribution: 

u);JL ~IMA.vt/"t- william Fauver 

Administrative Law Judge 

William Lawson, Esq., U.S. Department of Labo.r, Office of the 

Solicitor, Suiite 201, 2015 2nd Avenue, North, Birmingham, AL 

35203 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 600 Grant Street, 

58th Floor, Pittsburgh, PA 15219 (Certified Mail> 

Haro.iLd. Bowron, Jr., Esq., Balch & Bingham, P.O. Box 306, 

Birmii.n·gham, AL 35201 CCertif ied Mail> 

i'Z 

1689 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 161990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LANG BROTHERS, INC., 

Respondent . . 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 90-48 

A.C. No. 46-01968-03502 

Docket No. WEVA 90-58 

A.C. No. 46-01968-03503 

: Blacksville No. 2 Mine 

DECISION 

Appearances: Wanda M. Johnson, Esq., Office of the Solicitor, 

U.S. Department of Labor, for the Secretary of 

Labor (Secretary); Gregory A. Morgan, Esq., 

Young, Morgan and Cann, Clarksburg, West Virginia, 

for Lang Brothers, Inc. (Lang Brothers). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

In March and December 1989, Inspector George H. Phillips of 

the Mine Safety and Health Administration reviewed the registers 

kept by Consolidation Coal Company (Consol) of the contractors 

working at Consol's Blacksville No. 2 Mine. Lang Brothers was 

included on the register, having been engaged in cleaning out and 

plugging gas wells which penetrated the coal seam within the 

subject mine. The-inspector conducted spot inspections of Lang 

Brothers operation including its drilling equipment and issued a 

number of citations for violations of mandatory safety standards 

promulgated under the Mine Act. The Secretary seeks civil 

penalties for these alleged violations. on motion of the 

Secretary, the two dockets were consolidated for the purposes of 

hearing and decision. Pursuant to Notice, the consolidated case 

was called for hearing in Morgantown, West Virginia, on 

May 30, 1989. George H. Phillips and Lloyd Alvarez testified on 

behalf of the Secretary; Glenn Andrew Lang and Calvin Lofton 

testified on behalf of Lang Brothers. Both parties have filed 

post-hearing briefs. I have considered the entire record and the 

contentions of the parties and make the following decision. 

1690 
FINDINGS OF.FACT 

1. Lang Brothers is a heavy construction company, a major 

part of whose business involves drilling new gas wells and 

repairing existing wells for gas companies· (approximately 50 

percent of its work), and cleaning out and plugging abandoned 

wells for coal mine operators (the other 50 percent). 

2. Lang Brothers has had "blanket contracts" with 

Consolidation coal Company (Consol), each covering a calendar 

year wherein Lang Brothers agrees to clean and plug gas wells for 

Consol pursuant to "purchase orders" for each well to be plugged. 

Such a blanket contract existed for the calendar year 1989. Lang 

has plugged wells at different Consol mines since about 1980. It 

has also done the same work for about five other coal operators. 

3. Consol owns and operates an underground coal mine whose 

portal is in Monongalia county, West Virginia, and which extends 

underground in the states of West Virginia and Pennsylvania, 

called the Blacksville No. 2 Mine. 

4. Effective August 19, 1980, the Mine Safety and Health 

Administration (MSHA) issued an order granting Consol's petition 

for modification of the requirements of 30 C.F.R. § 75.1700 

requiring it to establish and maintain barriers around oil and 

gas wells in the Blacksville No •. 2 Mine. In lieu of establishing 

and maintaining such barriers, Consol was permitted to clean the 

wellbore and to seal the coalbed from the surrounding strata at 

the affected wells by plugging the wells from below the coalbed 

to the surface. 

5. In March of 1989, pursuant to a purchase order from 

Consol and instructions from Consol's engineer, Lang Brothers 

reopened, cleaned out and plugged wel.l No. B2-233 located in 

Pennsylvania~ Consol had received a permit from the state of 

Pennsylvania 1 for this work. Lang then brought its equipment to 

the site, including a drill rig, a water pump and water tanks, 

and a bulldozer. 

6. With this equipment, Lang cleaned out the existing well 

and plugged it with cement. The well penetrates and extends 

below the coal seam. Well No. B2-233 extended more than 1370 

feet below the surface. The coal seam was from 674 feet to 682 

feet below the surface. 

There is some confusion in the record as to whether the 

well was located in Pennsylvania or West Virginia, since 

Respondent's Exhibit 4 is an affidavit of plugging and filling a 

gas well on a West Virginia form. The date of this form however, 

is March 1990. The record seems to show that both wells involved 

in this case opened on Pennsylvania land. 

1691 
7. The land on which the equipment was positioned to clean 

and plug the wells was apparently not owned by Consol. Consol 

and Lang had to obtain the lanqowners' permission to enter and 

perform the necessary work. The land of course was above the 

coal mine being operated by Consol. 

8. On March 20, 1989, Federal mine inspector George 

Phillips went to.the Blacksville No. 2 Mine office and asked to 

see the contractor's register. Lang Brothers name appeared on 

the register, and Inspector Phillips proceeded to the area in 

which they were engaged in cleaning and plugging gas well No. B2-

233. He issued a citation charging a violation of 30 C.F.R. § 

77.1710(i) because the bulldozer was provided with rollover 

protection but did not have seat belts. 

9. In December 1989, .pursuant to another purchase order 

from Consol and instructions from Consol's engineer, Lang 

reopened, cleaned out and plugged well No. B2-278. Consol had 

applied for and received a permit from the state of Pennsylvania 

.for this work. Thereafter Lang brought its equipment to the site 

and commenced the operation. 

10. 

surface. 

surface. 

Well No. B2-278 extended more than 3000 feet below the 

The coal seam was from 802 feet to 808 feet below the 

11. On December 4 and December 12, 1989, Inspector Phillips 

in the course of inspections of Lang's operation at well B2-278, 

issued five citations, two alleging violations of 30 C.F.R. § 

77.404(a) because of a defective cylinder pressure gauge and 

inoperative rear lights on a bulldozer, one alleging a violation 

of 30 C.F.R. § 77.503 because of damaged insulation on a welder 

cable, one alleging a violation of 30 C.F.R. § 77.1110 because of 

a defective fire extinguisher at the oil storage station, and one 

alleging a violation of 30 c .. F.R. § 77.410 because of a defective 

backup alarm on a bulldozer. 

12. On May 1, 1989, coal mine inspector Lloyd Alvarez 

inspected the plugging operations at well B2-233, and on 

January 16, 1990, he inspected the plugging operations at well 

No. B2-278. 

13. At the time well B2-278 was cleaned and plugged, Consol 

was cutting through the coal seam about 300 feet from the well. 

The record does not indicate how far the coal mining operation 

was from well B2-233 at the time it was cleaned and plugged. 

14. Lang concedes that the plugging operation itself is 

subject to MSHA inspection. Lang has an MSHA I.D. number as an 

independent contractor. 

1692 
15. Lang concedes that if it is subject to the Mine Act, 

the conditions and practices cited in the citations involved here 

were present or occurred, and constituted violations of the Mine 

Act as alleged. 

ISSUE 

1. Whether Lang's operations in cleaning and plugging gas 

wells under contract with an underground coal mine operator are 

subject to the provisions of the Mine Act? 

STATUTORY PROVISIONS 

Section 3(d) of the Act provides: 

(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. 

Section 3(h) of the Act provides: 

(h) (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, 

and 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 

1693 
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; 

Section 4 of the Act provides: 

SEC. 4. Each coal other mine, the produce of which 

enter commerce, or the operations or products of which 

affect commerce, and each operator of such mine, and 

every miner in such mine shall be subject to the 

provisions of this Act. 

CONCLUSIONS OF LAW 

In the Otis Elevator cases (11 FMSHRC 1896, "OTIS I"; 11 

FMSHRC 1918, "OTIS II" (1989), appeals docketed Nos. 89-1712 and 

89-1713 (D.C. Cir. Nov. 20, (1989)) the· commission held that Otis 

Elevator Company which examined and maintained elevator equipment 

at an underground C!oal mine under contract with the coal mine 

operator, was an independent contractor performing sei::vices at a 

mine and thus was subject to the Mine Act. 

The Commission found Otis subject to the Mine Act because 

(1) its activities were an integral and important part of the 

coal extraction process; (2) Otis' employees worked at the mine 

site and were exposed to many of the same hazards as the 

employees of the mine operator; (3) Otis had a continuous 

presence at the mine site. 

The activities of Lang Brothers, in cleaning and plugging 

the gas wells for Consol, constitute an integral and important 

part of Consol's extraction process. Consol was obliged to clean 

and plug the wells in accordance with the modification petition 

in order to mine through the area where the well penetrated the 

coal seam. If Consol did the work itself, there could be no 

doubt that the work was part of the mining process. There should 

be no different cgnclusion because it. contracted out the work. 

Lang admits that the plugging operation itself is subject to MSHA 

inspection. But the cleaning and plugging constitute a single 

process, and both are necessary to Consol's mining activity. 

Lang's operations were not at the mine site per se, but were 

performed.on land above the mine and involved an operation which 

penetrated the coal seam. 

The two projects involved in these proceedings were of 

relatively short duration. Lang did not have a "continuing 

presence" at the subject mine, but approximately 50 percent of 

its work involved cleaning and plugging gas wells for coal mine 

operators. It could therefore·be said therefore to have a 

continuing presence in coal mine related work. 

1694 
Section 3(d) of the Act defines operator to inc:;:lude "any 

independent contractor performing services or construction at 

such mine." But as the Commission stated in OTIS I, not all 

independent contractors are op~rators. "[T]here 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." National Indus. 

Sand Ass'n v. Marshall, 601 F.2d 689, 701 (3rd Cir. 1979). 

In the case of Old Dominion Power Co. v. Donovan, 772 F.2d 

92 (4th Cir. 1985), relied upon by Lang, the Court held that a 

public utility which monitored an electric substation at a mine 

site, was not an operator under the Act, since it did not have a 

continuing presence at the mine. The relationship of Lang's 

activities involved here to the coal mining process is much more 

direct than the power company's activities in Old Dominion. 

About 50 percent of Lang's work is for coal mines as contrasted 

to the extremely small percentage of the power company's work. 

Although Lang's employees were not in the mine itself, they 

operated heavy equipment which penetrated the mine atmosphere and 

directly and substantially affected the extraction process. Most 

importantly, their work was directly related to the safety of the 

miners, since improper plugging of a gas well could cause methane 

leaking into the mine as the extraction of the coal progressed 

and could result in an underground ignition or explosion. I 

conclude that Lang's contact with the mine was neither 

"infrequent or de minimis". 

Therefore, I conclude that Lang, by virtue of the services 

it provided Consol and the importance of those services to 

Consol's coal mining operation, falls within the definition of 

operator in the Mine Act and is, therefore, subject to its 

jurisdiction. 

ORDER 

Based on the-above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citations 3100560 issued March 3, 1989, and 3311069, 

3311070, 3311071, issued December 4, 1989, and 3311624 and 

3311625 issued December 12, 1989, are AFFIRMED; 

2. Respondent shall within 30 days of the date of this 

decision pay the following civil penalties for the violations 

found to have occurred. 

CITATION 

3100560 

3311069 

3311070 

1695 

PENALTY 

$ 39.00 

39.00 

39.00 
3311071 

3311624 

3311625 

Distribution: 

39.00 

39.00 

39.00 

$234.00 

• , ) I ! 

t.u~ k/:J&vci11i-r!_,Jf_ 

James A. Broderick 

Administrative Law Judge 

Wanda M. Johnson, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Gregory A. Morgan, Esq., Young, Morgan & Cann, Suite One, 

Schroath Building, Clarksburg, WV 26301 (Certified Mail) 

slk 

1696 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 211990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

HARRY W. MULLEN, 

Complainant 

v. 

ERNST MATERIALS SERVICE, • 

Respondent 

. . 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 90-57-DM 

MSHA Case No. MD 89-65 

Sand and Gravel Plant 

ORDER OF DISMISSAL 

Before: Judge Koutras 

statement of the Case 

On June 12, 1990, I issued an order granting the Secretary's 

motion for a continuance of the hearing scheduled for June 26, 

1990, in Cincinnati, Ohio, and for a stay of the proceeding in 

order to afford the Secretary time to conduct an additional 

investigation. The Secretary has now filed a Motion to Dismiss 

this matter on the ground that further investigation revealed 

that the respondent corporation is no longer in business and the 

owner of the former respondent corporation died on June 22, 1990. 

The Secretary states that an analysis of successor liability was 

conducted under the standard enunciated in Munsey v. Smitty Baker 

Coal Company, et al., 2 FMSHRC 3463 and its progeny, and that the 

results of the analysis show that no successor corporation exists 

that could reasonably be impleaded by the Secretary. 

ORDER 

In view of the foregoing circumstances, the previously 

issued stay order IS LIFTED, and for good cause shown, the 

Secretary's motion IS GRANTED, and this matter IS DISMISSED. 

~A.1f:u~~ Administrative Law Judge 

1697 
Distribution: 

Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department 

of Labor, 881 Federal Office Building, 1240 East Ninth Street, 

Cleveland, OH 44199 (Certified Mail) 

Brett L. Thurman, Esq., Coolidge, Wall, Womsley & Lombard, 

600 IBM Building, 33 West First Street, Dayton, OH 45402 

(Certified Mail) 

/fb 

1698 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEOERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

AUG 2 21990 

LOCAL UNION 2176, DISTRICT 22 . . COMPENSATION PROCEEDING 

UNITED MINE WORKERS OF . . AMERICA ( UMWA) , . . Docket No. WEST 85-72-C 

Complainant . . 

. . Wilberg Mine 

v. . . 

. . EMERY MINING CORPORATION, . . Respondent . . 

ORDER OF DISMISSAL 

Before: John J. Morris 

The parties have reached an amicable settlement in the above 

case. 

Accordingly, the following order is appropriate: 

1. The settlement agreement is approved. 

2. The order of August 28, 1987, staying the hearing herein 

is dissolved. 

3. The hearing scheduled for October 10, ~990, in Price, 

Utah is cancelled. 

4. The case is dismissed. 

Law Judge 

Distribution: 

Mary Lu Jordan, Esq., Michael Dinnerstein, Esq., United Mine 

Workers of America, 900 15th Street, N.W., Washington, D.C. 20005 

(Certified Mail) 

Timothy Biddle, Esq., John T. Scott III, Esq., Crowell & Moring, 

1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004-2505 

CCertif ied Mail) 

/ot 

1699 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FED~RAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

AUG 2 2 \990 

LOCAL UNION 1769, DISTRICT 22 . . COMPENSATION PROCEEDING 

UNITED MINE WORKERS OF . . AMERICA C UMWA) , . . 'Docket No. WEST 85-74-C 

Complainant . . 

: Wilberg Mine 

v. . . 

. . EMERY MINING CORPORATION, : 

Respondent : 

ORDER OF DISMISSAL 

Before: Judge Morris 

The parties have reached an amicable settlement in the above 

case. 

Accordingly, the following order is appropriate: 

1. The settlement agreement is approved. 

2. The order of August 28, 1987, staying the hearing herein 

is dissolved. 

3. The hearing scheduled for October 10, 1990, in Price, 

Utah is cancelled. 

4. The case is dismissed. 

r 

.,._..._.~~ rris 

rative Law Judge 

Distribution: 

Mary Lu Jordan, Esq., Michael Dinnerstein, Esq., United Mine 

Workers of America, 900 15th Street, N.W., Washington, D.C. 20005 

CCertif ied Mail) 

Timothy Biddle, Esq., John T. Scott III, Esq., Crowell & Moring, 

1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004-2505 

CCertif ied Mail) 

/ot 1700 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 2 4 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of, ex rel, 

WILLARD GENNOY, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 90-77-D 

MORG CD 90-01 

Arkwright No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On August 17, 1990, the Secretary filed a motion to approve 

settlement in the above proceeding. Pursuant to the settlement 

agreement, I make the following findings and order: 

1. Willard Gennoy was engaged in protected activity on 

August 24, 1989, when he complained to a Consol management 

official about allegedly unsafe conditions and equipment on 

surface areas of the Arkwright No. 1 Mine. 

2. Consol illegally discriminated against Willard Gennoy in 

violation of section 105{c) (1) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 815(c) (1), by attempting to 

discharge him for his protected activity. 

3. Consol is ORDERED to execute and post a copy of the 

Notice to Miners, attached hereto, at the Arkwright No. 1 Mine 

for a period of not less than 30 days. 

4. Consol is ORDERED to expunge any reference to the events 

of the morning of August 24, 1989, and the attempted discharge of 

Willard Gennoy from all records maintained by Consol which are 

searchable by the Complainant's name, including but not limited 

to, the personnel records of Consol. 

5. Consol is ORDERED to pay back wages to Willard Gennoy of 

$2737.61 within 30 days of the date of this order. Consol is 

authori~ed to withhold from this sum such moneys as are 

authorized or required by law or contract to be withheld. Consol 

shall provide Willard Gennoy with a written statement itemizing 

such withholding at the time of payment. 

1701 
6. Consol is ORDERED to pay Willa.rd Gennoy case related 

expenses of $228 within 30 days of the date of this order. 

7. Consol is ORDERED TO PAY the Secretary a civil penalty 

of $100 within 30 days of the date of this order. 

14--t iu;s _#}i--z:· ~-z,e~ 1·· James A. Broderick 

{ Administrative Law Judge 

Distribution: 

Page H. Jackson, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203 

(Certified Mail) 

Walter J. Scheller, Esq., Consolidation Coal Company, Legal 

Department, 1800 Washington Road, Pittsburgh, PA 15241 (Certified 

Mail) 

Willard E. Gennoy, Route 2, Box 306, Morgantown, WV 26505 

(Certified Mail) 

Steven P. McGowan, Esq., Steptoe & Johnson, P.O. Box 1588, 

Charleston, WV 25326 (Certified Mail) 

slk 

1702 
ATTACHMENT TO DECISION RE: WEVA 90-77-D 

NOTICE TO MINERS 

This notice is provided to convey Consolidation Coal Company's 

awareness of the anti-discrimination provisions of Section 

105(c)(l) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. §801 et seq. and to insure all e~ployees of Consolidation 

Coal Company that the safety of employees is management's foremost 

concern. 

Consolidation Coal Company, the Secretary of Labor, and Willard 

Gennoy have reached a settlement in an action .. filed by the 

Secretary on behalf of Willard Gennoy under the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. 801 et seq. in the case of 

Secretary of Labor. Mine Safety and Health Administration CMSHA), 

on behalf of Willard Gennoy v. Consolidation Coal Company, Docket 

No. WEVA 90-77-D. The Secretary filed that action after receivinq 

a complaint from Willard Gennoy that Consol attempted to discharge 

him after Willard Gennoy complained about unsafe conditions and 

equipment to a management official. 

Management recognizes that the identification of problems 

affecting safety are essential and are protected under the Mine 

Act. Section 105(c) (1) of the Federal Mine Safety and Health Act 

of 1977 provides in its entirety: 

No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination 

against or other wise 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 

1703 
complaint notifying the operator of an alleged danger or 

safety or health violation in a coal or other mine, or 

because such miner, representative of miners or applicant 

for employment is subject of medical evaluations and 

potential transfer under a standard published pursuant 

to section 101 or because such miner, representative of 

miners, or applicant for employment has instituted or 

caused to be instituted any proceeding under or related 

to this Act or has testified or is about to testify in 

any such proceeding, or because of the exercise of such 

miner, representative of miners, or applicant for 

employment of any statutory right afforded by this Act. 

(emphasis added) 

Consolidation Coal Company acknowledges that this provision 

of the Mine Act prohibits Consol from discriminating against a 

miner because that miner reports an alleged danger or safety or 

health violation to management, the mine safety committee, the 

State of West Virginia, or the Mine Safety and Health 

.Administration. Moreover, all miners, mine safety committeemen, 

and foremen are afforded this protection against discrimination. 

Consolidation Coal Company acknowledges that the Mine Act 

prohibits Consol from treating a miner who complains about an 

alleged danger or safety or health violation differently than other 

miners. 

Consolidation Coal Company encourages miners to report any 

condition or practice believed to be unsafe or a violation of a 

mandatory safety or health standard to management. It is not now 

nor has it ever been Consol ida ti on Coal Company' s pol icy or 

practice to discriminate or otherwise interfere with miners 

exercising their rights under Section 105(c) (1) of the Mine Act. 

With continued cooperation between employees and management, 

1704 
it is our belief that we can maintain a safe and productive work 

environment. 

Sincerely, 

James Simpson 

Superintendent 

1705 
FEDERAL MINE SAFETY AND HEAL~ REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

AUG 271990 

UTAH POWER AND LIGHT COMPANY, 

MINING DIVISION, 

. . 

. . CONTEST PROCEEDING 

Contestant 

v. 

: 

. . Docket No. WEST 90-285-R 

Order No. 3583332: 7/12/90 

SECRETARY OF LABOR, . . Cottonwood Mine 

Mine ID 42-01944 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

. . 

: 

. . 

DECISION 

Appearances: Susan E. Chetlin, Esq., Crowell & Moring, 

Washington, D.C., 

Before: 

for Contestant: 

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

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

for Respondent: 

Robert Jennings, International Representative, 

UMWA, District 22, Price, Utah, 

for Intervenor. 

Judge Lasher 

This matter came on for expedited hearing on July 19 and 20, 

1990, to review a so-called "Imminent Danger" Withdrawal Order 

issued pursuant to Section 107Ca) of the Federal Mine Safety and 

Health Act of 197~, 30 u.s.c. § 801 et seg., (herein Mine Act). 

The Applicant (Contestant) Utah Power & Light Company, Mining 

Division (herein UPL) and the Secretary of Labor, MSHA (herein 

MSHA) were represented by Counsel. United Mine Workers of America (herein UMWA), the representative of miners, was represented 

by its International Representative, Mr. Robert Jennings. The 

parties submitted closing arguments (and precedent references) in 

lieu of post-hearing briefs. 

The subject Withdrawal Order, No. 3583332, was issued on 

July 12, 1990, at Contestant's Cottonwood Mine by MSHA Inspector 

Jerry O.D. Lemon. It had the effect of removing from service 

UPL's only two EIMCO (Diesel) #915 scoops (herein 915). The 

Order, consisting of four pages with diagrams, and two subsequent 

one-page modifications, alleges that the dangerous condition 

results from "blind spots" and the restricted field of vision 

available to the 915 operator. The basis for the issuance of the 

1706 
order was more fully developed in the exhibits and testimony of 

six witnesses presented by MSHA. UPL also called six witnesses 

and introduced exhibits in support of its positions. 

Issues 

The withdrawal order does not contain any charge of violation of safety or health standards. MSHA's allegation that an 

imminent danger existed is based on its investigation of the circumstances, including measurements of visibility problems and 

"blind spots," interviews, and findings as to prior accidents involving the subject equipment (See T.19-21). 

UPL contends that the enforcement action taken by MSHA was 

inconsistent with the existence of an imminent danger, including 

arguments that Cl) the mine was subject to some 20 prior inspections while the 915s were in use (since about 1985) without their 

being cited, (2) that a prior 103(g) inspection condl?Cted by 

Inspector Fred R. Marietti on May·21 and 22, 1990, did not result 

in any enforcement action or in a finding of imminent danger, 

(3) that Inspector Lemon delayed for approximately two hours his 

issuance of the withdrawal order <citing the decision of ALJ 

James Laurenson in Sharp Mountain Coal Company, et al., 3 FMSHRC 

115 (January 1981), and (4) that the 915s are still permitted use 

in other mines. 

UPL also contends that the 915s have been in use over five 

years in its Cottonwood Coal Mine without the occurrence of any 

"lost-time" injuries CT. 23), that there was no emergency, and 

that use of the 915s was not "likely to lead to death or serious 

injury." CT. 23-26). 

The Order 

Withdrawal Order No. 3583332 was issued on July 12, 1990, at 

approximately 2 p.m. by Inspector Lemon. It provides, inter 

alia: 

Safe operation of the EIMCO 915 diesel scoop, Serial 

No. 01147 could not be done in that an inspection was 

done by the writer on 7/12/90 and it was determined that 

serious visability [sic] problems existed on the model 915-

1147 in thati the view opening from the top of the operators cab over the steering wheel was 2" to 2 3/4" wide 

and with a miner--that was 5'9" tall was placed 4' outby 

or from the side of the machine and moved inby and outby, 

it was determined that an approximate blind spot of 

23' 10" existed on opposite the operators side of the 

1707 
machine. This blind spot imposes a serious blind spot 

to any coal miner walking on this side of the machine. 

See the below diagram which is not to scale: 

[Refer to diagram on Ex. G-1) 

There is no termination time set as this is an order. 

It is important to note that the EIMCO 915, SIN-04117 

was also taken underground to the 1st South Main Intake 

haulage road and the following results were found: with 

a Isuzu pickup parked in the center of the entry, lined 

up with this EIMC0-915--with the bucket on the EIMCO in 

the half-roll position Cup)--, the operator can see only 

the top of the cab of the truck. Front of the truck 

right at the bucket--of the EIMCO. To see the headlights 

of this truck other truck had to be moved 164 feet outby 

the EIMCO on a fairly flat roadway. These headlights 

are at about 31" height. 

Results of in mine Rear View: 

[Refer to diagram on Ex. G-1] 

Results of turning EIMCO (away from operators sight): 

The operator in this case could not see the Isuzu pickup at a 269-foot distance. He could only see the glare 

of the lights on the mine roof. There was a 5% grade 

approximately drop from the corner turn point to the 

Isuzu pick-up. 

[Refer to diagram on Ex. G-1] 

At 6" from the bucket of scoop, operator of the scoop 

can barly [sic] see the top of the Isuzu for a considerable distance. The entry at this location was about 

19 feet wide by 8 feet height. This diesel scoop is 

approximately 76" height from the ground to the top of 

the canopy. From the entry floor to the tope of the 

highest point on a surge tank cover plate it was 65". 

This machine is 8' 1 11 • The operators compartment on the 

machine is flush with the right-hand side of this machine. 

In the writers view--the visability [sic] on this machine is 

terrible from the operators compartment. There has been one 

reported serious accident--with this scoop and an Isuzu 

pick-up truck driving into each other. Neither operator 

seen each other until it was too late. 

1708 
[Refer to diagram on Ex. G-1) 

To summarize thes~ two diagrams, diagram A which is to 

the radiator and- end of the machine. [A] 5' 9" man was 

placed 4' from the side of the machine and he could not 

be seen from the belt up, until a point 72 1/2' distance. 

The boot level of the miner could not be seen for a distance of 92 1/4 feet (This wouid be 90% to 100% of the 

miner view. 

In Diagram B, looking over the bucket of this machine--

the same man was placed 4' from the right-hand side of 

this machine and this man--from the belt up could not 

be seen for a distance of 130 feet (50% observation of 

this man) and from his boots up to his head could be 

seen at about 199' from the operators eye area. These 

tests were run on the surface. 

There is no part and section of 30 C.F.R. that relates 

to tnis visability [sic] problem observed here, so this 

is a 107-a order with no violation of-.Part 30 CFR. 

A regular operator was placed in the operators cab prior 

to making these tests and all distances were based· on 

his sight (Terral Hardy). 

The first modification of the Order was issued by Inspector 

Lemon on July 16, 1990, stating: "107Ca) Order dated July 12, 

1990, is hereby modified to also show that following the interviews of five Diesel EIMCO 915's operators, it was found that far 

more than one accident had occurred over a five-year period. At 

least 15 accidents were substantiated through the interviews. 

Ed .Taylor, operator, five accidents; Scott Oliver, operator, two 

accidents; Robert Phelps, operator, one accident; Steve Miner, 

operator, three accidents; James Ledger, operator, three accidents. All these operators·talked to, stated that a real visibility problem exists opposite the operator's side of these two 

EIMCO 915s on this property. Also, that serious blind spots 

exist when making a turn away from the operator's sight, into 

crosscuts or around entries. These interviews were conducted on 

July 13, 1990." 

The second modification was issued by Inspector Lemon on 

July 18, 1990, indicating: "107-a Order No. 3583332 dated 

July 12, 1990, is hereby modified to show continuations sheet 

No. 2 .~odified on the lower diagram, under Results of Turning 

EIMCO (away from operator sight). This diagram of the EIMCO 

scoop is modified to show the bucket on the other end of the 

1709 
EIMCO 915. Also in the body of the condition under this diagram, 

the first sentence is modified to read; at 6" from the Radiator 

end of this scoop, the operator of the EIMCO can barely see the 

top of the Isuzu pick-up truck." 

Inspector Lemon was sent to the mine by his superiors on 

July 12, 1990, to take a "second look" or make a "follow-up" 

following an earlier MSHA investigation into a complaint filed 

under section 103{g) of the Mine Act with special emphasis on the 

visibility problems of the 915s {T. 29, 62, 74). 

The Section 103(g) Complaint l; 

In a letter to Randy Tatton, UPL's Safety Director, Steven 

L. Thornton, President, UMWA, Local 2176, District 22, complaints 

by 915 (927) diesel haulage operators in a May 10, 1990, union 

meeting relating to "Isuzu trucks" and visibility problems were 

reported (Ex. A-6). 

1/ Section 103Cg) of the Mine Act provides: 

"(g)(l) Whenever a representative of the miners or a miner 

in the·case of a coal or other mine where there is no such 

representative has reasonable grounds to believe that a violation of this Act or a mandatory health or safety standard 

exists, or an imminent danger exists, such miner or representative shall have a right to obtain an immediate inspection by giving notice to the Secretary or his authorized 

representativ~ of such violation or danger. Any such notice 

shall be reduced to writing, signed by the representative of 

the miners or by the miner, and a copy shall be provided the 

operator or his agent no later than at the time of inspection, except that the operator or his agent shall be notified forthwith if the complaint indicates that an imminent 

danger exists. The name of the person giving such notice 

and the names of individual miners referred to therein shall 

not appear in such copy or notification. Upon receipt of 

such notification, a special inspection shall be made as 

soon as possible to determine of such violation or danger 

exists in accordance with the provision of this title. If 

the Secretary determines that a violation of danger does not 

exist, he shall notify the miner or representative of the 

miners in writing of such determination. 

1710 
By letter of May 16, Mr. Tatton and Earl Snow, General Mine 

Foreman, responded to the Thornton letter and listed some 12 

measures being taken to resolve the problems. (Ex. A-5). 

Based on an unsigned complaint dated May 21, 1990 (Ex. A-7, 

p. 1), MSHA Inspector Fred R. Marietti, (on the same date) conducted an investigation of the complaint and on May 22, 1990, 

issued a two-page report based thereon (also Ex. A-7, pp. 2 and 

3). This report states. 

"This is the result of a 103(g) inspection conducted 

on 05/21-22/90. The EIMCO 915 scoop was looked at 

and the operators of the scoops interviewed. Changes 

in lighting, moving of lights, removal of metal or 

lowering has been conducted on the machine to increase 

the operators visibility. The operators feel they 

are in control of their machine. Because the machine 

is so large and the mine environment restricts·the 

machine's mobility, it is apparent that they have to 

be operated with some precautions. This also includes 

precautions of other equipment being operated by its 

operator. Traffic rules have to be established and 

followed to avoid accidents. In regard to the 300 

1/ (Footnote continued) 

(2) Prior to or during any inspection of a coal or 

other·mine, ~ny representative of miners or a miner in the 

case of a coal or other mine where there is no such representative, may notify the Secretary or any representative 

of the Secretary responsible for conducting the inspection, 

in writing, of any violation of this Act or of any imminent 

danger which he has reason to be.lieve exists in such mine. 

The Secretary shall, by regulation, establish procedures for 

informal review of any refusal by a representative of the 

Secretary to issue a citation with respect to any such alleged violation or order with respect to such danger and 

shall furnish the representative of miners or miner requesting such review a written statement of the reasons for the 

Secretary's final disposition of the case." 

1711 
feet mentioned in the 103(g) complaint, 2/ there are 

many areas where that would be impossible due to dips, 

bends, and other conditions common to the mine environment. Depending on the size of the equipment, lower 

as an Isuzu pick-up, it may not be able to be seen 

immediately alongside or within·25 to 50 feet in 

front or behind on the side opposite the operator's 

compartment. A person standing is more easily seen 

with his light and reflective tape and this mine requires reflective vests also. Operators of Isuzus and 

other equipment were interviewed also. It appears 

that the general consensus of the persons interviewed 

was that traffic rules and consideration with safe 

driving methods need to be followed. On May 16, a 

meeting was held between management and representatives of the miners. A copy of the outcome with 

problems needing to be addressed is enclosed as a 

part of this investigation. At the time of this 

investigation, the problems addressed have been implemented or are being worked on. There were no 

violations, safeguards, or orders issued." 

According to Inspector Lemon, he had no knowledge why 

Inspector Marietti-did npt issue a withdrawal order, but he 

assumed that "he didn't go through the tests and examinations 

we went through." CT. 60). This impression was borne out in 

the record CT. 168-172, 176-179, 201). 

General Findings 

At the times material herein, UPL utilized two 915s at its 

Cottonwood underground coal mine and has done so since approximately 1985 CT.152). 

2/ The complaint alleges: "The EIMCO 915 loaders at our mine 

have a visibility problem of which the operators cannot see the 

travelway or incoming traffic 300' out. (This was brought up by 

an operator at a meeting with management.) We feel this to be an 

imminent danger to personnel traveling the roadways. Also, we 

have experienced several accidents involving this equipment." 

(Ex. A-7). 

1712 
The 915 is 30 feet long by 8 feet wide by 5 feet high (T.55, 

149). 3/ It weighs approximately 20 tons CT. 85, 149) and runs 

between five and seven mph CT. 67, 242). The 915 is more suitable for metal/non metal mines since they generally have a higher 

seam than coal mines CT. 144-146). 

Eighty to 90 percent of the time, the two 915s are engaged 

in taking supplies from outside the mine to the sections and the 

rest of the time they are engaged in "gobbing" - a process of 

cleaning up loose coal on an active section, or "even outby in 

crosscuts or roadways." The 915s travel "the most traveled 

roadways into the mine" and "travel all the main intakes in." 

Inspector Lemon testified the 915s would meet all traffic "coming 

in the opposite direction" and would meet "occasional miners 

walking along intakes, miners coming from other entries, belt 

entries, what have you, through the doors through these intakes." 

(T. 54-55, 120, 149, 150). The two 915s are operated on all 

three eight-hour shifts at the mine CT. 96). 

One miner, Jeffery A. Ricchetti, a mechanic, described the 

operationa~ effect of the 915s as follows: 

"Well, one, I've seen these operators visually, 

because they can't see out of the machine, they've 

hooked onto pieces of equipment in my sections, drug 

'em down the entries, they've run into our material 

cars, tore the supplies off the material cars, they've 

ran into 7200 cables with these machines, live 7200 

cables with these machines, basically because they 

can't see out of these machines. And they are big and 

large, and they take up the entry, and they kind of 

scare you when you go around them." CT. 84). 

Ricchetti also described the mine as being full of intersections, turns, d.ips and rolls (T. 91, 94) and indicated that it 

was difficult from an Isuzu pick~up to see another pickup at 100 

or 200 yards (T. 91). 

3/ By comparison, an Isuzu pick-up weighs 3000 pounds CT. 85). 

There were approximately 25-27 Isuzus operating at the mine (T. 

286-287, 359, 378). At the time of the Order's issuance, not all 

of the.- Isuzu pick-ups had been equipped with strobe lights. (See 

Ex. A-5; T. 288, 359). 

1713 
The adverse effect on visibility of the vagaries, "ups and 

downs" and bends in the mine was conceded or confirmed by numerous other witnesses (T. 100-104, 113-114, 116, 187-188, 190, 

197-198, 203-206, 265, 288, 290, 293, 301-305). The existence of 

"blind spots" due to dips was also confirmed CT. 265, 297). 

Relying on the reflections from the lights of ·other vehicles does 

not always prevent the 915 operator from striking the other 

vehicle CT. 295-296, 312-313). It would be "possible" not to see 

a miner on foot due to "blind spots" CT. 297-299). 

Upon his arrival at the mine on July 12, Inspector Lemon had 

one of the two 915s brought to the surface (this was the "better" 

of the two machines, T. 61) where he conducted visibility tests. 

A "four-foot blind spot" was found by placing a 5'9" man four 

feet from the machine CT. 30, 31, 32, Ex. G-3). For a distance 

of 14 feet 8 inches parallel to the machine, the 915 operator 

could see no portion of the man's head CT. 33, T. 140-144). Then 

for a space of six inches, the man could be seen; then, however; 

another blind spot occurred from the end of the six-inch point, 

described by the Inspector as follows: 

A. Then at roughly an approximate point six inches inby 

this 14 foot 8 inch point this man again went into 

another blind spot and we advanced him out to nine foot 

two inches. 

Q. Is that indicated here in Exhibit 3? 

A. Yes, it is. 

Q. And in that area this man who was walking parallel 

four feet from the piece of equipment could not be 

seen? 

A. Yes, sir. So from this examination we surmised that 

we had a serious blind spot off the operator's side 

of this machine, and being very concerned with this, 

because this type of machine in a coal mine, there are 

people wal]ting alongside of these machines." CT. 34). 

The record reveals numerous situations where the 915 has 

very limited or partial visibility (Ex. G-3, G-5, G-6; T. 34, 47, 

49, 11, 97, 142, 193, 197-198, 211, ·210, 201, 295, 300>. 

On July 12 after the surface tests, the 915 was taken 

underground into the First South intake roadway where the 

approximate mine height was 8 feet and the width was 20 feet 

CT. 35). 

1714 
From first talking to two operators (Terral Hardy and 

Edmond Taylor), Inspector Lemon determined there was a visibility 

problem on the side opposite the operator, and in making turns 

into crosscuts and entries (T. 36, 45, 47). With respect to the 

915's visibility problem relating to the modified Isuzu pick-ups 

used in the mine, Inspector Lemon testified: 

"That means that I was standing right next to the 

operator myself, although he was in--his visibility was 

was probably just a little less than mine. I could see 

roughly that much of the cab, and that's what he could 

see, about an inch of the cab, about an inch and a half 

of the cab. And after the six-inch outby, the six inches 

the truck faded out of view, and up to a distance of 269 

feet you couldn't see any part of the truck, nor could 

you see any part of the headlights. All you could see 

is the light off the truck, the glare off the mine roof." 

CT. 39). (Emphasis added). 

xxx xxx xxx 

THE WITNESS: No, you cannot see the headlights. You can 

see the light glare against the mine roof. 

THE COURT: Okay, you can see the top of the truck? 

THE WITNESS: No, you can't. 

THE COURT: Okay. Are you saying at 269 feet away, 

you can't see any part of the truck? 

THE WITNESS: Yes, that's what I.'m saying. 

THE COURT: Oh, okay. So on EXHIBIT 5 you indicated 

269 feet the Eimco operator cannot see the 

headlights of the truck? 

THE WITNESS: That's ri~ht, sir. 

THE COURT: Okay, you're saying now he couldn't 

see the top of the truck either? 

THE WITNESS: No, all he could see was the light reflections off of the line roof from a blue 

strobe light.n CT. 41). (Emphasis added). 

Inspector Lemon gave this description of the view an 

operator has through the cab of the 915: 

1715 
A. This gives a true· indication of the view, it 

gives a true indication of the real problem 

we have, a basic problem of tunnel vision. 

When you're setting in this cab, your head is 

against this cab, and you're looking at a 

space of two to two and three-quarter inches 

over to five and three-quarter on the far 

left side of that and this machine, if you 

keep in mind, is approximately eight feet 

one inches wide. It's just like looking down 

a tube." CT. 52) • See also Exhibit G-4. 

The Inspector explained his decision to issue an imminent 

danger Order in this manner: 

"I concluded it was very dangerous with the 

blind spots that we have. I feel it's a very 

serious blind spot opposite the operator's side 

of the machine, and I feel also that it's a 

very dangerous situation exists with visibility 

on turns, and that's why I issued the order. 

That's my feeling, that we have a serious situation here." CT. 77). 

Respondent MSHA established that there has been a signif icant number of accidents involving the 915 over the 5-5! year 

period it had been in use at the Cottonwood Mine. Thus, Inspector Lemon's investigation revealed there had been approximately 

15 accidents over the period CT. 50, 58, 73). 

Several of these accidents had the potential of causing 

serious injuries CT. 50, 73, 100-102, 158, 195, 281, 301). 

In one of the accidents, involving an Isuzu pickup driven by 

Larry Hunsaker, aq electrician mechanic, and Robert Phelps, who 

was operating a 915, the Isuzu pickup was "totaled" CT. 102, 

111)~ Hunsaker narrowly escaped serious injury CT. 100, 101-102, 

111, 112). Although the two vehicles were approaching each other 

"head on," neither driver saw the other CT. 107-108, 113-114, 

116). While Hunsaker received "corrective action" from UPL for 

"going too fast," the record nevertheless indicates the essential 

cause of this and other accidents as the visibility problem of 

the 915 driver CT. 47-49, 65, 89-90, 91, 113, 114, 116, 118, 

134, 159-160, 193, 194, 197, 203-206, 277, 278, 291). 

Another 915 accident resulted in the filing of a safety 

grievance in April 1990 CT. 158), following which special 

meetings were held between UPL, UMWA, and the 915 operators. 

1716 
After these meetings UPL installed work changes and equipment 

changes prior to the July 12, 1990 Withdrawal Order CExs. A-1, 

A-5, A-6; T. 160). Some of these changes announced by UPL in a 

May 16, 1990 memo (Ex. A-5) were to encourage Isuzu travel in 

certain areas, counseling an apparently aberrant Isuzu operator, 

training in traffic policies, upgrading lighting (high intensity 

blue strobe light) for parked Isuzus, training Isuzu operators to 

get into a safe location at least 300 feet away from oncoming 

large equipment, eliminating a severe dip, upgrading lighting 

systems on the 915s, and lowering the 915s fenders to improve 

visibility CT. 160-168, 172, 191, 216, 229). Nevertheless, these 

changes, presumably in effect on July 12, 1990, did not change 

the testing and measuring results CExs. G-2, 3, 4 and 5) obtained 

by Inspector Lemon, nor the opinions of various credible witnesses adduced at the hearing as to the visibility problem. 

Further the upgraded lighting was not placed on other equipment 

CT. 163, 216-217), nor were the strobe lights installed on all 

Isuzu pickups CT. 288, 378-379). 

MSHA also established that there was considerable exposure 

to miners ·traveling on foot in the mine by the blind spots and 

visibility limitations of the 915 CT. 94-95, 110, 142-143, 256, 

266-273, 290, 292, 297-299, 389). 

Contestant's Positions 

Contestant established through its Chief Safety Engineer, 

Randy B. Tatton, that the most serious disabling injuries at 

the mine were back injuries and that use of the 915, which has 

the capability of delivering material in close proximity to the 

work site, would decrease such injuries by decreasing the amount 

of material actually handled by miners CT. 150). 

915 operators are task-trained on the machines and on 

several occasions-special training sessions have been held to 

discuss new work rules, and such things as use of lights and 

rights-of-way rules CT. 152-154, 155). 

No "occupational injuries," i.e. lost-time injuries, have 

occurred at the Cottonwood mine as a result of the operation of 

the 915s CT. 156). While the accident involving Phelps-Hunsaker 

involved an injury to Hunsaker, such required only first-aid and 

was not classified as an occupational injury calling for reporting to MSHA CT. 157). 

Mr. Tatton testified that following the installation of 

new work rules on or about May 23, 1990, there have been no 

collisions involving the 915 CT. 171, 174-175). 

1717 
Mr. Tatton described in some detail what he considered 

Inspector Lemon's indecision after conducting his measurements 

and before the withdrawal order was issued CT. 180-184}. Among 

other things, Mr. Tatton indicated that on July 12 the inspection 

party returned to the surface and arrived at his off ice about 

12:15 p.m.; that he asked Inspector Lemon what he was "going 

to do with the machine," and that the Inspector said he had to 

look at his information before making a decision. Mr. Tatton 

said it was not until 1:30 p.m. to 1:45 p.m. before the company 

was asked to take the machines out of service CT. 180-182). 

Mr. Tatton gave the opinion that the use of the 915 at the 

Cottonwood mine did not constitute an imminent danger and 

explained: 

"To me an imminent danger means that if that 

machine turned around and went back in that mine, it 

would probably kill somebody; and I knew for a fact 

we'd operated two machines for five years and never 

even had an occupational injury." CT. 184). 

The 915 operator Edmond Taylor indicated that at 2 p.m. on 

July 12, 1990, he was asked by one Dixon Peacock to tag his 915 

out of service CT. 228). Mr. Taylor's opinion was that the 915's 

visibility problem did not create an imminent danger CT. 228, 

248). 

Dale Fillmore, area manager for Eimco/Jarvis/Clark, the 

maker of the 915, testified that he is in charge of sales and 

service of his company's products for his area; that the 915 has 

been produced for 15 years; that some 20-25 other "mines" use the 

915; that "several" of such mines have si.milar seam heights to 

the Cottonwood min~; that it was his opinion that use of the 915 

at the Cottonwood was not reasonably likely to lead to death or 

serious injury; that the safety of the 915 has to be related to 

the professionalism of the operator and such things as work 

rules. 

Dave D. Lauriski, director of health, safety and training 

for UPL testified that at 12:30 p.m. on July 12, 1990, he called 

the mine and spoke with Mr. Tatton CT. 345-346} who told him that 

"there was a concern that there was·going to be some enforcement 

1718 
action taken against the equipment." 4/ Mr. Lauriski then went 

to the mine and discussed the matter with Inspector Lemon, who 

was undecided whether to cite a violation or issue an imminent 

danger order CT. 346, 349). Lauriski suggested that a meeting 

with Inspector Lemon's supervisors in Price, Utah might be in 

order in lieu of enforcement action being taken CT. 349). 

According to Mr. Lauriski, it was at this point that Inspector 

Lemon suggested that UPL voluntarily take the 915s out of service. 

Inspector Lemon's supervisor was called and reportedly he, in 

effect, said that the enforcement decision was Inspector Lemon's 

to make and that such a meeting as that suggested by Lauriski 

would be "meaningless." CT. 349-350). Inspector Lemon then 

issued the withdrawal order. 

Mr. Lauriski did not believe that the "visibility restrictions" on the 915 created "a reasonable likelihood of serious 

injury or death." CT. 351). He also said that taking the 915s 

out of service increases the "manhandling" of materials by individual miners, would slow down supplying the mine with needed 

materials for retreat mining, etc., and would increase the risk 

of injury to miners because of the types of manual labor that 

might have to be performed. He also was concerned that mine 

housekeeping and trash removal would deteriorate CT. 352-353, 

356). He also indicated that on July 12, 1990, only approximately three-fourths of the 26-27 Isuzu pickups were equipped 

with strobe lights for use when parked CT. 359, 378-379). 

As noted above, contestant UPL introduced evidence that, to 

make the 915's operation safer, it installed work changes and 

equipment changes prior to the July 12, 1990 Withdrawal Order 

CExs. A-1, A-5, A-6; T. 160-167, 172). 

Nevertheless, these changes pre·sumably in effect on July 12, 

1990, did not change the testing and measuring results obtained 

by Inspector Lemon, nor the opinions of various credible 

witnesses adduced at the hearing as to the visibility problem. 

Further, the upgraded lighting was not placed on other equipment 

CT. 163, 216-217), nor were the strobe lights installed on all 

Isuzu pickups CT. 288, 378-379). 

4/ 12:30 p.m. would have been shortly after the inspection party 

returned to the surface. This particular testimony also supports 

Inspector Lemon's position that he was going to do something 

about the 915s. (See also T. 363). 

1719 
UPL also established that it had certain "Rules of the Road" 

in effect on July 12, 1990, one of which, pertaining to right-ofway, provided that smaller vehicles must give way to larger 

vehicles CT. 70-71). The record indicates that the 915 is the 

largest such equipment in the mine CT. 89). Here again, though, 

there is the evidence that, while the Isuzu pickups were required 

by this rule to get out of the way of the oncoming 915s, there 

are occasions, such as when going around a turn, when this is 

impossible CT. 90-91, 190, 193, 197-198, 276-279). 

Other significant (and preponderant) evidence shows Cl) 

because of dips and turns, the 915 operator's visibility is 

further limited CT. 127, 131, 159, 191, 197-198, 235, 238, 

265);(2) the rules are not always followed CT. 127, 131, 159, 

191, 197-198, 203, 206, 238-240, 244-246, 276, 277, 278, 

281-284); and (3) conditions are not always "normal" CT. 97, 193, 

197, 238-240j 244-246, 276, 277, 278, 281-284). Individual 

miners do not wear their reflective tape in the same place 

CT. 284). 

UPL makes the argument that there were 5 to st years of 

inspections at the Cottonwood mine while the 915 loader was in 

service without a withdrawal order being issued.on the 915. To 

the extent that such contention goes beyond the raising of a 

possible basis for inferring that the 915 has no dangerous 

visibility problem and raises the defense of estoppel, such is 

rejected. See Secretary of Labor v. King Knob Coal Company, 

Inc., 3 FMSHRC 1417 (1981). Further, there is no showing that 

the specific limits of visibility were ever previously determined 

as they were'in the tests and measurements of Inspector Lemon, 

and as I have noted elsewhere herein the determination of 

Inspector Marietti apparently was not anywhere as thorough as 

that of Inspector Lemon. 

Contestant UPL-was also concerned with and presented evidence with respect to its economic hardship and cost factors 

which would attend the loss of use of the 915s. Such evidence, 

however, is not found to be directly or indirectly relevant to 

the decisive issue in this case: whether an imminent danger 

existed. 

Discussion and Conclusions 

The question in this matter is whether or not the blind 

spots and visibility limitations on the operators of the 915s 

constitute an imminent danger. 

1720 
The meaning of "imminent danger" has undergone transformation since the general concept of it first appeared in mine 

safety law in 1952. ~/ See Freeman Coal Mine Company v IBMA, 

(7th Cir. 1974). In that case the Court, speaking in reference 

to the 1969 Federal Coal Mine and Safety Act, quoted from the 

legislative history, to wit: 

The definition of an "imminent danger" is broadened 

from that in the 1952 act in recognition of the need 

to be concerned with any condition or practice, naturally or otherwise caused, which may lead to sudden death 

or injury before the danger can be abated. It is not 

limited to just disastrous type accidents, as in the 

past, but all accidents which could be fatal or nonfatal to one or more persons before abatement of the 

condition or practice can be achieved. 

115 Cong. Rec. 39985 (1969). (Emphasis added.) 

The Federal Mine Safety and Health Review Commission in the 

last year retained the view of the U.S. Appellate Courts in its 

decision in Rochester & Pittsburgh Coal Company v. Secretary of 

Labor, 11 FMSHRC 2159 (November 1989), wherein it set forth the 

following useful formula for analysis of "imminent danger" 

questions: 

In analyzing this definition, the U.S. Courts 

of Appeals have eschewed a narrow construction and 

have refused to limit the concept of imminent danger 

to hazards that pose an immediate danger. See ~, 

Freeman Coal Miriing Co. v. Interior Bd. of Mine Op. 

~' 504 F.2d 741 C7th Cir. 1974). Also, the Fourth 

Circuit has rejected the notion that a danger is imminent only if there is a reasonable likelihood that 

it will result in an injury before it can be abated. 

Eastern Associated Coal Corp. v. Interior Bd. of Mine 

Op. App., 491 F.2d 277, 278 (4th Cir. 1974). The 

~/ The Mine Act defines an imminent danger as "the existence of 

any condition or practice in a coal or other mine which could 

reasonably be expected to cause death or serious physical harm 

before such condition or practice can be abated." Section 3(j) 

of the Mine Acti 30 u.s.c. 802(j). This definition was not · 

changed from the definition contained in the Coal Mine Health and 

Safety Act of 1969, 30 u.s.c. § 801 et seq. Cl976) (amended 1977) 

Cthe "Coal Actw). 

1721 

/, 
court adopted the position of the Secretary that "an 

imminent danger exists when the condition or practice 

observed could reasonably be expected to cause death 

or serious physical harm to a miner if normal mining 

operations were permitted to proceed in the area 

before the dangerous condition is eliminated. 491 

F.2d at 278 (emphasis in original). The Seventh 

Circuit adopted this reasoning in Old Ben Coal Corp. 

v. Interior Bd. of Mine Op. App., 523 F.2d 25, 33 

(7th Cir. 1975.)" 

These principles seem to put to rest any argument--if such 

is indeed actually made--by UPL that an "emergency" extant in the 

mine is a prerequisite to the existence of an imminent danger 

determination. In Rochester & Pittsburgh, supra, the Commission 

also seemed to emphasize that the analytical focus is on the 

"Potential of the risk to cause serious physical harm at any 

time" (emphasis added). Inspector Lemon testified in this 

connection that: 

"In my mind, I feel that reasonably, at any time, 

someone could be seriously hurt or killed, if I let 

this condition go before it could have been abated." 

(T. 56). 

The Inspector 6/ elaborated on this judgment as follows: 

A. Okay, I'm very concerned with off the operator's 

side, if they're hitting these pickups and they 

don't actually know where the pickup is, I'm very 

concerned with where the person that got out of 

the pickup is, whether he's walking around. If 

they couldn't see the pickup, they're not going 

to see the operator that's between the line of 

pickup. 

Q. What kind of hazard would there be? 

A. This would be an imminent danger, if he was pinned 

between that and the machine, you'd kill him outright or crush him to where he'd be seriously hurt. 

6/ Inspector Lemon was a particularly persuasive witness, his 

testimony reflecting the thoroughness of his testing and investigation, his candid responses on cross-examination, and 

sincerity of conviction. 

1722 
Q. What if he was inside the truck, how would you 

compare? 

A. If he was inside the truck, he could also be killed, 

if the machine hit that pickup in the door side of 

the operator, it could be fatal. That's all in +elation to the speed that the machine is traveling, 

but that's a very, very possible likelihood. CT. 56-57) 

:UPL's claim that the 915 was really no different in visibility limitation to other pieces of·"equipment CT. 133-136, 

184-185, 188-189, 203-206) was in the form of 'generally stated 

opinion evidence, unsupported by measurements taken on such other 

equipment or accident statistics CT. 198). Nor was such other 

equipment shown to be similar to the 915 CT. 136-137). Such is 

not considered to overcome the more detailed and convincing proof 

submitted by MSHA in support of its conclusion that the 915's 

blind spots visibility problem created an imminent danger 

CT. 190, 193, 197, 203-206, 297, 299). 

Although UPL in one of its major arguments takes the position that the Inspector's "delay" in issuing the Withdrawal Order 

demonstrates an inconsistency with the "emergency" or urgency it 

alleges is necessary to justify an imminent danger order, Inspector Lemon satisfactorily explained his actions as follows: 

A. Well, at this time I asked the safety man, Randy 

Tatton, and a few other management people around 

there, I needed some time to go outside to look at 

all the data we had got together, and compiled all 

this·stuff, and I told him I felt we had a serious 

problem here with visibilitya And I asked him at 

this time if he would pull ·his machines.out of 

service until I could get all this stuff together. 

And so Randy said yes, this would be possible. 

He took his machines out of service. They took 

them outside and they put company tags on them and 

they put them in the--it's a little house where 

they store rock dust, right adjacent to their surface shop area. 

Q. So you did that immediately after you made your 

observations of the situation? 

A. Yes. 

Q. You didn't wait two hours? 

1723 
A. No, and we did that immediately. Randy took them 

out of service immediately, and then we got outside 

and we talked about the problems. I was having a 

real problem finding a section in 30 CFR to attach 

to the imminent danger order, and I couldn't find 

one because there is not one. So I, in fact, issued 

the order, and then we went down and put the tags 

on the machine. And some of the safety department, 

maybe one of the mine managers, went on down to the 

Price office to meet with one of the supervisors, 

and they asked me to go down with them, and I said 

I'd be down shortly, as soon as I finished looking 

at the Eimco and took some measurements. And I took 

some measurements and looked at it. CT. 45, 46). 

Inspector Lemon, when called as a rebuttal witness, reiterated his testimony that while the inspection party was 

still underground he asked Mr. Tatton (in the presence of the 

union representative and an MSHA "technical support man") to 

voluntarily remove the 915s from service CT. 381). 

Based on the Inspector's explanation for the short delay in 

issuing the withdrawal. order, and the fact that for at least part 

of this period UPL actually, albeit voluntarily, removed the 915s 

from active service, I attribute no misunderstanding or doubt on 

the Inspector's part as to the necessity of or justification for 

issuing the Order. 7/ 

UPL's "delay in issuance" argument can be equated to an 

"Instant Recognition" test, that is, if the situation is not so 

patent or obviously an "emergency," that it immediately dawns on 

the "reasonable man" inspector observing such and causes him to 

act instantaneously, then the condition or practice cannot be an 

7/ One memoer of UPL's management, Garth Neilsen, Longwall 

Superintendent, verified that the Inspector was concerned about 

getting the 915s out of service and that his "indecision" was 

about how to do it: 

To me he seemed undecided. I do feel he felt 

there was a definite safety problem there, as 

far as visibility, but he felt--I felt that 

he felt he was undecided on how to handle that, 

.as far as which way to get the machine out of 

service. CT. 211) (Emphasis added). 

1724 
imminent danger. Such a test undoubtedly would cover some imminent danger situations, but not necessarily all. Applying such a 

test might frequently shift the litigation from a trial of the 

true issue to a trial of such things as the Inspector's I.Q., his 

fatigue, or his high-level expertise on a specific safety subject. 

Again, the effect would be that if the inspector cannot literally 

"hip-shoot" a particular decision, the withdrawal order should 

not stand. Such a squeezing of the decision time-frame would infringe on the principle that mine inspectors must have "the necessary authority for the taking of action to remove miners from 

risk." Rochester & Pittsburgh Coal Co., supra. In the instant 

matter, the inspector had measurements, tests, information, a 

number of laws, enforcement options and fairness to the mine 

operator as factors to weigh. Any one of such factors in a given 

set of circumstances might justify a longer period of deliberation than that involved here. Forcing a hasty decision may not 

always be consistent with either sound mine safety enforcement or 

justice,. 

I find no basis for concluding that Inspector Lemon abused 

his disc~etion or authority in the issuance of an imminent danger 

withdrawal order in this matter. 

It is concluded that the conditions observed by the Inspector and described in the record could reasonably have been 

expected to cause death or serious physical harm to a miner if 

normal mining operations were permitted to proceed, and that the 

use of the 915s with the severe visibility limit~tions described 

herein above created a significant potential of causing serious 

physical harm at any time. 

ORDER 

Based on the foregoing findings and conclusions, UPL's 

application for review seeking vacation of Withdrawal Order 

No. 3583332 is DEN~ED and the Order is AFFIRMED. 

Distribution: 

. d 

~~~/ c:?: P~u, Michael A. Lasher, Jr. 

Administrative Law Judqe 

Susan E. Chetlin, Esq., Crowell & Moring, 1001 Pennsylvania 

Avenue, N.W., Washington, D.C. 20004-2505 (Certified Mail) 

James A. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Robert Jennings, United Mine Workers of America, P.O. Box 783, 

Price, UT 84501 (Certified Mail) 

1725 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

AUG 2 8 \990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BELLAIRE CORPORATION, 

Respondent 

Before: Judge Cetti 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 89-47 

A.C. No. 32-00044-03511 

Indian Head Mine 

DECISION 

This case is before me upon a petition of assessment of 

civil penalty under Section 105Cd) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801, et seq:,, the "Act". 

The Secretary of Labor on behalf of the Mine Safety and Health 

Administration (MSHA), charges the Respondent, Bellaire Corporation (Bellaire), as operator of the Indian Head Mine with the 

violation of 30 C.F.R. § 77.1605Ck) and 30 C.F.R. § 77.1103Ca). 

Respondent filed a timely answer contesting the violations. With respect to Citation No. 2930426, Respondent denies 

Petitioner's allegation that a violation occurred and contests 

the citation on the grounds that the safety cans referred to in 

the citation were "identified" within the meaning of 30 C.F.R. 

§ 77.1103Ca), and on the grounds that the citation constitutes 

an unlawful retroactive application by Petitioner of a change 

in policy with respeet to the interpretation of 30 C.F.R. 

§ 77.1103Ca) 

With respect to Citation No. 2930427, Respondent denies 

Petitioner's allegation that a violation occurred and contests 

the Citation on the grounds that it constitutes an unlawful 

retroactive application by Petitioner of a change in policy 

with respect to the interpretation of 30 C.F.R. § 77.1605Ck). 

Citation No. 2934026 alleging a significant and substantial violation of 30 C.F.R. § 77.1103(a) and Citation No. 

2930427, were issued by federal mine Inspector Sass based on his 

AAA inspection of Bellaire's Indian Head Mine. Petitioner filed 

a proposal for penalty in the sum of $363 for Citation Nos. 

2930426 and 2930427. 

1726 
Citation No. 2930427 - VACATED 

On August 7, 1989, petitioner filed a motion for leave 

to vacate Citation No. 2930427 and withdraw its related $206 

proposed penalty based upon its determination that the citation 

was issued in error. The motion is GRANTED. Citation No. 

2930427 and its related proposed penalty are vacated. 

Citation No. 2930426 

The remaining Citation No. 2930426, by agreement of the parties, is now submitted for decision without hearing on stipulated facts, affidavits, exhibits, and supporting briefs. The 

primary issue is whether the five-gallon cans containing a flammable liquid (gasoline) referred to in Citation No. 2930426 were 

"properly identified" as that term is used in 30 C.F.R. 

§ 77.1103(a). 

Stipulations of Facts not in Dispute 

1. Bellaire Corporation ("Bellaire") is engaged in mining 

and selling of lignite in the United States and its mining operations affect interstate commerce. 

2. Bellaire is the owner and operator of Indian Head Mine, 

MSHA I.D. No. 32-00044-03511. 

3. Bellaire is subject to the jurisdiction of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~' 

C "the Act") • 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. Citation No. 2930426 Cthe "Citation"), a true and correct copy of which is in evidence as Exhibit 1, was properly 

served by a duly authorized representative of the Secretary upon 

an agent of Bellaire on the date and place stated therein and is 

admitted into evidence for the purpose of establishing its issuance and not for the truthfulness or relevancy of any statements 

asserted therein. 

6. The proposed penalty will not affect Bellaire's ability 

to continue business. 

7. Bellaire demonstrated good faith in abating the violation. 

8. Bellaire is a large mine operator with approximately 

1,100,000 tons of production in 1988. 

1727 
9. Bellaire has never had any accidents or injuries involving color coded safety cans used to store flammable liquids. 

10. September 12, 1988, was the first time that 

Richard Sass, who issued the Citation, inspected the Indian Head 

Mine. 

11. The safety cans described in the Citation (the "Safety Cans") were all of the five-gallon size, were approximately 12 

in number and were all colored red. One of the Safety Cans was 

labeled "Kerosene" and was empty. All of the other Safety Cans 

were empty or contained gasoline. All of the Safety Cans complied with Bellaire's Policy on Uniform Color Coding of Safety 

cans. 

12. All of the Safety Cans were located in the "fuel farm" 

area at the Indian Head Mine. The fuel farm is approximately 

45 ft. x 105 ft. in size; contains gasoline, diesel fuel and 

oil storage tanks, as well as gasoline and diesel fuel pumps; 

and is surrounded by a dike approximately two feet high which 

cannot be crossed by vehicles, as required by state law. A 

true and correct drawing depicting the fuel farm area at the 

time of the Citation was issued is attached hereto as Exhibit 2. 

All of the Safety Cans were inside the dike surrounding the 

fuel farm and were located within twenty (20) feet of the gas 

pump. "NO SMOKING", "FLAMMABLE" and "KEEP OPEN FLAMES AWAY" 

signs were posted at the fuel farm when the Citation was issued. 

No ignition sources were present. 

13. The flammable liquids in the Safety Cans were stored 

in accordance with all applicable standards of the National 

Fire Protection Association. 

14. There are no factual issues in dispute. The only 

legal issue in dispute is whether the use of color coding to 

identify safety cans containing flammable liquids violates 

30 C.F.R. § 77.1103(a). 

15. No hearing is necessary in order for the Administrative Law Judge to decide the legal issue presented by this case. 

16. If the Administrative Law Judge finds in favor of 

Petitioner on the alleged violation of 30 C.F.R. § 77.1103Ca), 

Respondent agrees that the violation would be significant and 

substantial and that the amount of penalty, as proposed by the 

Secretary of Labor, would be appropriate. 

1728 
17. The certified copy of the MSHA Assessed Violations 

History (Joint Ex. J-1) accurately reflects the history of 

Bellaire Corporation's Indian Head mine for the two years prior 

to the date of Citation No. 2930426. 

18. The safety cans cited in Citation No. 2930426 were not 

labeled in writing or lettering of any kind which named the contents of the cans. 

19. The safety can labeled "kerosene," which is referred to 

in Stipulation No. 11, was properly identified and is not covered 

by Citation No. 2930426. 

The Record 

The record before me, in.addition to the stipulated facts 

set forth above, includes Cl) Bellaire's Policy on Uniform Color 

Coding of Safety Cans (Ex. l); (2) a diagram of the fuel farm at 

the Indian Head Mine (Ex. 2); (3) the affidavit of Inspector 

Richard Sass Cthe "Sass Affid.") filed by Petitioner, (4) the 

affidavit of Robert L. Benson, general superintendent of the 

Indian Head Mine, the "Benson Affid.") filed by the Respondent, 

and; (5) the printout of the Respondent's prior history of violations at the Indian Head Mine during the two years prior to the 

issuance of Citation No. 2930426 (Ex. J). 

DISCUSSION 

30 C.F.R. § 77.1103Ca) provides: 

Flammable liquids shall be stored in accordance 

with the standards of the National Fire Protection Association. Small quantities of flammable 

liquids drawn from storage shall be kept in E.!:22-

perly identified safety cans. (Emphasis added). 

Citation No. 2930426 describes the alleged violation as 

follows: 

Safety cans, containing a flammable liquid (gasoline), 

were obsurved [sic] by the fueling area that were not 

properly identified with a !able [sic] to show the contents of the cans. This condition creates a hazard of 

an explosion or fire. (Emphasis added). 

1729 
On page 1 of her "Memorandum Brief in Support of Proposal 

for Penalty, Petitioner states that the sole issue for decision 

is whether the red safety cans containing gasoline observed at 

the mine's fuel farm were properly "labeled." That is not the 

issue. The issue is whether the cans containing gasoline were 

properly "identified." The cited safety standard expressly 

requires only "proper identification," not "proper labeling." 

The parties now stipulate that there are no factual issues 

in dispute and that the only legal issue in dispute is whether 

the use of color coding to identify safety cans containing flammable liquids violates 30 C.F.R. § 77.1103(a). 1/ 

The key term in the cited regulation is "properly identified." Respondent contends that the regulation permits the use 

of color coding to identify safety cans containing flammable 

liquids. The Petitioner, on the other hand, contends that labeling is the only proper means of identification. 2/ The term 

"properly identified" is not defined in the regulations at Title 

30 of the Code of Federal Regulations, and neither party has 

cited any cases on point. 

1/ The parties have stipulated that the safety cans cited were 

in accordance with all applicable standards of the National Fire 

Protection Association. CStip.#13). 

2/ The Secretary has not published or distributed to mine operators any document which interprest 30 C.F.R. § 77.1103(a) to 

require the use of labeling, and prior to the issuance of Citation No. 2930426, the Secretary never advised Respondent that 

color coding was unacceptable. [Benson Affid. ! 3.B. and 3.C.] 

In his Affidavit, Inspector Sass states that it has always 

been MSHA's policy to require labeling under 30 C.F.R. 

§ 7.1103(a), but it clearly appears no such written policy 

exists. Furthermore, the fact that Respondent utilized its color 

coding system for almost six and one-half years without being 

cited and was inspected by MSHA many times during this period 

tends to demonstrate that no such policy existed at least in 

MSHA's District 9. 

1730 
It is well established that in construing a statute or regulation, one must first look to the plain language of the provision. Secretary of Labor v. Freeman United Coal Mining Company, 

6 FMSHRC 1577, 1578 (1984); Secretary of Labor v. Puerto Rican 

Cement Company, Inc., 4 FMSHRC 997, 998 (1982). 

The relevant meaning of "identify" is, "to establish the 

identity of." Webster's Ninth New Collegiate Dictionary (1986) 

p. 597. It is generally accepted that identity can be established through means other than labeling. 

If the Secretary had meant to require labeling in 30 C.F.R. 

§ 77.1103(a), she could have easily done so as she did in 30 

c.F.R. § 57.4402. That regulation deals with storage of flammable liquids in underground metal and nonmetal mines and 

provides: 

Safety cans. Small quantities of flammable liquids 

drawn from storage shall be kept in safety cans • 

labeled to indicate the contents. 

The fact that both regulations deal with the same subject 

matter (storage of flammable liquids) and that the Secretary 

expressly required labeling in one .instance but not in the other 

is a clear indication that the Secretary did yot intend to 

require labeling in 30 C.R.F. § 77.1103(a). ~ 

Even if the Secretary did intend to require labeling under 

30 C.F.R. § 77.1103(a), she did not adequately express her 

intent, and as the Court in Phelps Dodge Corp. v. Federal Mine 

Safety and Health Review Commission, 681 F.2d 1189, 1193 (9th 

Cir. 19.82 > observed: 

If a violation of a regulation subjects private 

parties to criminal or civil sanctions, a regulation 

cannot be construed to mean what an agency intended 

but did not adequately express. 

3/ Significantly, in 30 C.F.R. § 56.20012, the Secretary also 

expressly required labeling of toxic materials. That regulation 

provides: 

Labeling of toxic materials: Toxic materials used in 

conjunction with or discarded from mining and milling 

of a product shall be plainly marked or labeled so as 

to positively identify the nature of the hazard and the 

protective action required. 

1731 
I concluded that the proper construction of 30 C.F.R. 

§ 77.1103(a) is that an operator may use any reasonable means 

of establishing for its employees the identity of flammable 

liquids stored in safety cans. 

The Secretary already has recognized that color coding is 

a proper means of identification. In 30 C.F.R. § 77.1710-1 and 

30 C.F.R. § 75.1720-1 the Secretary has required the use of 

distinctively colored hard hats to identify new miners. 4/ 

Thus, I am hard pressed to give credence to the Secretary's 

assertion that color coding is not a proper means of identification. Her argument is not persuasive. 

It has not been demonstrated that Respondent's color coding 

system failed to establish for employees at the Indian Head Mine 

the identity of flammable liquids stored in safety cans. Respondent issued a written policy covering its color coding system. 

The policy was posted at ten locations at Respondent's mine. All 

employees were instructed on the policy when it was implemented, 

and all new employees are instructed on the policy as part of 

their initial training and orientation. In addition, "FLAMMABLE," "NO SMOKING" and "KEEP OPEN FLAMES AWAY" signs were 

posted in the fuel farm-area at the mine where the safety cans in 

issue were located. Respondent has not had any accidents involving safety cans used to store flammable liquids since implementing its color coding policy on April 16, 1982. It appears from 

the record that Respondent's color coding policy works. 

The Secretary argues that the safety cans in issue were 

not properly identified, because the identity of the contents 

!/ 30 C.F.R. § 77.1710-1 provides: 

Hard hats or hard caps distinctively different in 

color from those worn by experienced miners shall 

be worn at all times by each newly employed, inexperienced miner when working in or around a mine 

or plant for at least one year from the date of his 

initial employment as a miner or until he has been 

qualified or certified as a miner by the State in 

which he is employed. 

1732 
was not "readily apparent" to visitors like Mr. Sass who were not 

familiar with the Respondent's color coding system. 5/ Thi~ 

argument necessarily assumes that federal mine inspectors and 

other visitors lack common sense and, if left unattended, will 

without permission experiment or tamper with things at a coal 

mine. This argument is not persuasive and, if applied to the 

entire mining operation, would lead to a host of absurd results. 

The purpose of the Federal Mine Safety and Health Act, as set 

forth in Congressional findings and declaration of purpose, 30 

u.s.c. § 801, is to protect miners, which Respondent's color 

coding system with its training and posting requirements certainly does. The argument that the identity of the contents of 

the safety cans was not readily apparent to Mr. Sass is not 

persuasive and certainly is not dispositive of the issue. 

If the Secretary truly believes that the identification 

required by 30 C.F.R. § 77.1103(a) should be done specifically by 

labeling and no other method, she should so modify the regulation 

in accordance with Section lOl(a) of the Mine Act, which requires 

all rules concerning mandatory health or safety standards to be 

promulgatea in accordance with section 553 of the Administrative 

Procedure Act ("APA"), 5 u.s.c. § 553. Further, section 

10l(a)(2) of the Act, 30 u.s.c. § 8ll(a)(2), requires the Secretary to publish in the Federal Register any "proposed rule promulgating, modifying, or revoking a mandatory health or safety 

standard" and to permit public comment on the proposed regulation 

(emphasis added). 

Based upon the foregoing findings of fact and conclusions of 

law, I enter the following: 

ORDER 

1. Citation No. 2950426 is vacated and its related proposed 

penalty is set aside. 

5/ Mr. Sass had never inspected the Indian Head Mine prior to 

the date he wrote Citation No. 2930426. CStip. #10). 

1733 
2. In accordance with Petitioner's motion Citation No. 

2930427 is vacated and its related proposed penalty set aside. 

Distribution: 

F. Cetti 

istrative Law Judge 

s. Lorrie Ray, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1585 Federal Office Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

Andrew S. Good, Esq., Bellaire Corporation, 12800 Shaker Boulevard, Cleveland, OH 44120-2099 (Certified Mail) 

Mr. Robert L. Benson, Bellaire Corporation, P.O. Box 299, Beulah, 

ND 58523 (Certified Mail) 

Mr. Wayne Stevens, IMWA, Route One, Box 180, Hazen, ND 58545 

(Certified Mail) 

/ek 

1734 
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Sea.le. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDl;RAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

AUG 2 81990 

ENERGY FUELS COAL, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA) 

Petitioner 

v. 

ENERGY FUELS COAL, INC •. , Respondent· 

. . 

. . 

: 

: 

. . 

. . 

. . 

: 

. . 

: 

: 

. . 

. . 

. . 

. . 

. . 

: 

: 

. . 

. . 

CONTEST PROCEEDING 

Docket No. WEST 89-296-R 

Citation No. 3077175; 5/11/89 

Docket No. WEST 89-288-R 

Citation No. 3077183; 5/11/89 

Southfield Mine 

Mine I.D. 05-03455 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-449-A 

A.C. No. 05-03455-03569 

Southfield Mine 

DECISION APPROVING SETTLEMENT 

Appearances: Phillip D. Barber, Esq., Welborn, Dufford, Brown & 

Tooley, Denver, Colorado, 

for Contestant/Respondent; 

Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner/Respondent. 

- Before: Judge Lasher 

The parties, through the Secretary of Labor, have submitted a 

motion to approve their settlement which resolves the two citations remaining in Penalty Docket WEST 89-449-A. Pursuant to the 

settlement reached, Respondent agrees to pay in full the $79 penalty originally assessed for Citation No. 3077183. As to Citation No. 307715, the parties agree that the violation described 

therein is not "significant and substantial" and that the penalty 

therefor should· thus be reduced from the original $98 to $50. 

Based on approval of this agreement, Respondent withdraws its 

contests in the two captioned contest proceedings. The settlement is reasonable and part of an overall settlement of many 

dockets reached by these parties. Accordingly, it is APPROVED. 

1736 
Order 

1. Citation No. 3077175 is MODIFIED to delete the "significant 

and substantial" designation thereon and is otherwise 

APPROVED. 

2. Contestant/Respondent Energy Fuels shall pay to the Secretary 

of Labor the total sum of $129 as and for the civil penalties 

agreed on and here assessed within 30 days from the date 

hereof. 

3. Contest Docket Nos. WEST 90-288-R and WEST 89-296-R are 

DISMISSED. 

Distribution: 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Phillip D. Barber, Esq., Johns. Cowan, Esq., ENERGY FUELS COAL, 

1700 Broadway, Suite 1700, Denver, CO 80290-1701 (Certified 

Mail) 

Margaret A. Miller, Esq., Office of the ~olicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

co 80294 (Certified Mail) 

/ek 

1737 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 . 

AUG 2 8 \990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

C. W. MINING COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST .90-79 

A.C. No. 42-01697-03609 

Docket No. WEST 90-94 

A.C. 42-01697-03610 

Bear canyon No. 1 Mine 

Appearances: Robert J. Murphy, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, for 

the Secretary of Labor (Secretary); 

Carl E. Kingston, Esq., Salt Lake City, Utah, 

for c.w. Mining Company (C.W.) 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks civil penalties for eight alleged 

violations of mandatory health and safety standards promulgated 

pursuant to the provisions of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seg. (the Act). Both parties 

engaged in pretrial discovery. Pursuant to notice, the cases 

were called for hearing on the merits on July 17, 1990, in Salt 

Lake City, Utah. On the record, I ordered the cases CONSOLIDATED 

for the purposes of hearing and decision. Counsel for the 

Secretary stated that citation 3411629 would be vacated and that 

the parties had agreed to a settlement with respect to citations 

3077726 and 3412009. I indicated on the record that I would 

affirm the vacation of the citation mentioned above and would 

approve the proposed settlement of the other two violations. 

Donald E. Gibson and Terrance Dinkel testified on behalf of the 

Secretary. Kenny Defa, Nathan Atwood, Gaylen Atwood and 

Cyril Jackson testified on behalf of c.w. At the close of the 

hearing, counsel for both parties waived their rights to file 

post-hearing briefs, and each argued his case of the record. I 

have considered the entire record and the contentions of the 

parties and make the following decision. 

1738 
FINDINGS OF FACT 

1. At all times pertinent hereto, c.w. was the owner and 

operator of an underground coal mine in Emery County, Utah, known 

as the Bear Canyon No. 1 Mine. 

2. c.w. produced 211,438 tons of coal during the first nine 

months of 1989. It is a medium sized operator. 

3. During the period from July 5, 1987 to July 4, 1989, 

c.w. had 242 paid violations; during the period October 24, 1987 

to October 23, 1989, it had 213 paid violations. Of these one 

was a violation of 30 C.F.R. § 75.524, four were violations of 30 

C.F.R. § 75.313, 17 were violations of 30 C.F.R. § 75.503 and 27 

were violations of 30 C.F.R. § 75.400. I find that this history 

is not such that penalties otherwise appropriate should be 

increased because of it. 

INNER ARCING OF SHUTTLE CARS 

4. On August 23, 1989, Federal Coal Mine Inspector 

Donald E. Gibson inspected the subject mine because ~SHA had 

received a section 103(g) complaint that "arcing" existed when 

shuttle cars touched the continuous miner. 

5. When Inspector Gibson reached the section, the 

continuous miner was outby the power center where repairs were 

being performed. For that reason, he conducted his tests between 

two shuttle cars, number 20 and number 21. The shift was an idle 

shift and the cars were parked. He tested with a Hubble-Ensign 

amp meter, clamping a lead to each car, the cars being between 12 

and 24 inches apart. He asked the operator of car No. 20 to set 

the parking brake and start the tram lever. This resulted in a 

reading of 1.5 amps on the meter. Using the same procedures on 

car No. 21, he found a reading of 1.2 amps. He verified these 

readings using a "lock-on" amp meter. The same results were 

found. Respondent's witnesses testified that the inspector did 

not use the Hubble-Ensign amp meter but only used the lock-on amp 

probe, which did not have an ohm resistor. I have no reason to 

disbelieve the testimony of Inspector Gibson, and therefore on 

this question, I accept it as factual. 

6. The two shuttle cars involved here were the only cars 

normally used on the section. They operated on separate 

roadways, one tramming toward the miner to obtain a load of coal, 

the other hauling a load of coal from the miner to the feeder 

breaker and beltline. In the normal mining cycle, the two 

shuttle cars do not contact each other. On one occasion in 1987 

or 1988 when a new mine was being started, the two shuttle cars 

were operated 11 piggy-back"--one car was loaded from the miner and 

then transferred the load to the other car. This occurred 

because the miner was a great distance from the feeder breaker. 

1739 
It has not been repeated. Although the shuttle cars do not 

contact each other, each car regularly contacts the continuous 

miner in the normal mining cycle. 

7. No methane has ever been detected in the mine by a hand 

held methane detector. Bottle samples taken April 6, 1988 showed 

.04% methane. Samples taken February 22, 1989, showed .01 % 

methane. The former would result in 24,000 CFM methane in a 24 

hour period, the latter in 1500 CFM methane in a 24 hour period. 

8. On August 23, 1989, Inspector Gibson issued two 

citations alleging violations of 30 C.F.R. § 75.524 because the 

current between the frames of the No. 20 and No. 21 Joy shuttle 

cars exceeded one ampere. (One citation was issued for each 

shuttle car.) The inspector also issued a withdrawal order under 

section 107(a) of the Act alleging that the conditions of the two 

shuttle cars constituted an imminent danger. The withdrawal 

order itself was not contested. 

9. The withdrawal order was terminated on August 23, 1989, 

when the shuttle cars were deenergized and removed from the 

section. The citations were terminated on August 24, 1989, when 

"the inner arcing on [each] machine was repaired." 

METHANE MONITOR 

10. At about 4:30 a.m., on November 16, 1989, a piece of 

rib coal struck the methane monitor on the continuous mining 

machine and knocked out the power to the miner. The miner 

operator (also the section foreman on the graveyard shift) 

bypassed the power to eliminate the monitor in order to back the 

miner out to.a safer place. It was then about 5:30 a.m., and the 

section foreman performed his preshift examination and called the 

results outside. The miner was not tagged or locked out. 

11. The preshift examination book did not note that the 

methane monitor was inoperative or that miner was removed from 

service. 

12. Inspector Gibson arrived at the mine shortly after 5:30 

a.m., on November 16, 1989, conferred with Kenneth Defa, c.w.•s 

superintendent, and went underground a little before 7:00 a.m. to 

perform an electrical spot inspection. 

13. When the inspection party arrived on the section, the 

continuous miner was energized and miners were servicing and 

washing it. It was located about two crosscuts inby the feeder 

breaker. It had not been used to cut coal since it was moved 

back at about 5:30 a.m. 

14. Inspector Gibson ·checked the methane monitor and found 

that it was not operating. He issued a citation for a violation 

1740 
of 30 C.F.R.· § 75.313. He cited the violation as significant and 

substantial. No methane was detected at the time. The Inspector 

believed that the condition created a hazard of an ignition or 

explosion should the miner strike a pocket of methane and fail to 

shut down. 

15. After the citation was issued, Superintendent Defa 

asked Inspector Gibson for permission to continue to use the 

miner until the methane monitor could be replaced. Gibson told 

him he could not give such permission. Defa denied that he made 

such a request, but I accept Gibson's testimony that he did. 

16. A new methane monitor was installed and the citation 

was terminated on November 17, 1989. 

PERMISSIBILITY 

17. The same continuous miner had a loose headlight and an 

opening in excess of .005 inch between the cover lid and the main 

circuit breaker compartment. 

18. Inspector Gibson issued a citation on November 16, 

1989, for a violation of 30 C.F.R. § 75.503. He cited the 

violation 'as significant and substantial. 

19. The hazard posed by this condition was the possibility 

of internal arcing within the control box which could escape to 

the outside and cause an ignition. The miner was not cutting 

coal, but was energized. 

20. The conditions were corrected by securely fastening the 

headlight to the frame of the machine and closing the opening in 

the cover lid of the main circuit breaker compartment. The 

citation was terminated November 17, 1989. 

ACCUMULATIONS ON BOBCAT 

21. On Novem15er 17, 1989, there were accumulations of coal 

fines, pieces of coal and oil on the housing of a diesel bobcat 

being operated on the West bleeder working section of the subject 

mine. The oil and oil mixed with coal were on the top and both 

sides of the motor. Coal and coal fines were on the bottom of 

the motor. 

22. Inspector Gibson issued a citation for the above 

accumulations alleging a violation of 30 C.F.R. § 75.400. He 

designated the violation as significant and substantial because 

he believed they posed a fire hazard. He did not measure the 

accumulations. 

23. The bobcat had been cleaned about 10 hours prior to the 

issuance of the citation. It was· scheduled to be cleaned again 

1741 
on the following shift in accordance with the company cleanup 

program. 

24. The bobcat was cleaned, the accumulations removed, and 

the citation terminated in about 15 minutes. 

REGULATIONS 

30 c.F.R. § 75.524 provides as follows: 

§ 75.524 Electric face equipment: electric equipment 

used in return air outby the last open crosscut: 

maximum level of alternating or direct electric current 

between frames of equipment. 

The maximum level of alternating or direct electric 

current that exists between the frames of any two units 

of electric face equipment that come in contact with 

each other in the working places of a coal mine, or 

between the frames of any two units of electric 

equipment that come iri contact with each other in 

return air outby the last open crosscut, shall not 

exceed one ampere as determined from the voltage 

measured across a 0.1 ohm resistor connected between 

the frames of such equipment. 

30 c.F.R. § 75.313 provides as follows: 

§ 75.313 Methane monitor. 

[Statutory Provisions] 

The Secretary or his authorized representative shall 

require, as an additional device for detecting 

concentrations of methane, that a methane monitor, 

approved as reliable by the Secretary after March 30, 

1970, be insta1led, when available, on any electric 

face cutting equipment, continuous miner, longwall face 

equipment, and loading machine, except that no monitor 

shall be required to be installed on any such equipment 

prior to the date on which such equipment is required 

to be permissible under §§ 75.500, 75.501, and 75.504. 

When installed on any ·such equipment, such monitor 

shall be kept operative and properly maintained and 

frequently tested as prescribed by the Secretary. The 

sensing device of such monitor shall be installed as 

close to the working fact as practicable. Such monitor 

shall be set to deenergize automatically such equipment 

when such monitor is not operating properly and to give 

a warning automatically when the concentration of 

methane reaches a maximum percentage determined by an 

authorized representative of the Secretary which shall 

1742 
not be more than 1.0 volume per centrum of methane. An 

authorized representative of the Secretary shall 

require such monitor to deenergize automatically 

equipment on which it is installed when the 

concentration of methane reaches a maximum percentage 

determined by such representative which shall not be 

more than 2.0 volume per centrum of methane. 

30 C.F.R. § 75.503 provides as follows: 

§ 75.503 Permissible electric face equipment: 

maintenance. 

[Statutory Provisions] 

The operator of each coal mine shall maintain in 

permissible condition all electric face equipment 

required by §§ 75.500,· 75.501, 75.504 to be permissible 

which is taken into or used inby the last open crosscut 

of any such mine. 

30 C.F.R. § 75.400 provides as follows: 

§ 75.400 Accumulation of combustible materials. 

[Statutory Provisions] 

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. 

ISSUES 

1. Whether the evidence establishes that the level of 

electric current existing between the frames of two units of 

electric face equipment that come in contact with each other in 

the working places of the coal mine exceeded one ampere? 

2. Whether the methane monitor on the continuous monitor 

was kept operative and properly maintained? 

3. Whether the continuous miner was maintained in a 

permissible condition? 

4. Whether coal dust and other combustible materials were 

permitted to accumulate on the diesel bobcat? 

5. Whether, if violations are established, they were 

significant and substantial? 

1743 
CONCLUSIONS OF LAW 

C.W. is subject to the provisions of the Act in the 

operation of the Bear Canyon No. 1 Mine. I have jurisdiction 

over the parties and subject matter of this proceeding. c.w. is 

a medium sized operator and has an average history of prior 

violations. All the violations involved in this proceeding were 

abated promptly in good faith. 

I. INNER ARCING OF SHUTTLE CARS 

30 c.F.R. § 75.524 provides that the maximum level of 

electric current existing between the frames of any two units of 

electric face equipment that come in contact with each other in 

the· working places or in return air outby the last open crosscut 

shall not exceed one ampere. The inspector tested two shuttle 

cars and found the current to exceed one ampere in each car. The 

evidence, however, does not establish that these shuttle cars 

come in contact with each other, either in the working places, or 

in return air outby the last open crosscut. Each shuttle car 

regularly comes in contact with the continuous miner, and the 

inspector speculated that arcing would occur between each car and 

the miner, but he did not test them. I conclude that the 

Secretary has not carried her burden of proving the two 

violations charged in citations 3411949 and 3411950. 

II. METHANE MONITOR 

The methane monitor on the continuous monitor was admittedly 

inoperative. The miner had been pulled back from the face 

because the monitor had been damaged. The question is whether it 

was withdrawn from service. It was not deenergized when 

Inspector Gibson observed it. The methane monitor problem had 

not been noted in the preshift book (though the condition had 

been orally reported by the graveyard shift foreman). The miner 

was not tagged or locked out. Most significantly, C.W.'s 

superintendent asked the inspector for permission to continue to 

use the miner. Therefore, I conclude that the methane monitor on 

the continuous miner was not kept operative or properly 

maintained. I reject c.w.•s contention that the methane monitor 

violation is a permissibility violation, and must be included as 

part of the citation alleging other permissibility violations. 

The failure to remove a continuous miner from service when 

its-methane monitor is inoperative is a very serious violation. 

Such a violation is likely to result in serious in]ury. This is 

true even though methane has not been detected by a methane 

detector in this mine. As Inspector Gibson stated, methane is 

liberated in the cutting of coal, and even a small amount of 

methane can cause an ignition. It was properly cited as 

significant and substantial. Cf. Mathies Coal Company, 6 FMSHRC 

1 (1984). 

1744 
III. PERMISSIBILITY 

c.w. does not seriously contest the alleged permissibility 

violations but argues that they were minimal. The headlight was 

loose: there was an opening in the main circuit breaker 

compartment of the miner. I conclude that a violation of the 

permissibility standard was established. The Secretary has 

failed to establish that the violation was significant and 

substantial. There is no evidence that it would be reasonably 

likely to result in injury. 

IV. ACCUMULATIONS ON BOBCAT 

c.w. argues that the accumulations on the bobcat constituted 

simply a film and that c.w. follows a regular cleanup program. 

Inspector Gibson testified that motor oil had leaked from the 

valve cover pan down on the sides of the motor. He testified 

that coal fines and loose coal were caked on the sides of the 

motor. I conclude that c.w. permitted coal dust, loose coai and 

other combustible material to accumulate on the bobcat. The fact 

that it was following a cleanup plan does not defeat a citation 

for accumulations of combu~tible materials. Utah Power & Light 

Co., 12 FMSHRC 965 (1990). The bobcat motor was hot to the 

touch. The accumulations were reasonably likely to ignite. 

The bobcat was parked behind the feeder breaker. Should a fire 

break out, it would cause smoke or flame to go inby toward the 

face. The violation was significant and substantial. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citation 3411629 is VACATED. 

2. Citations_3411949 and 3411950 are VACATED. 

3. Citations 3077726 and 3412009 are AFFIRMED. 

4. Citations 3412281 and 3412288 are AFFIRMED including the 

designation of the violations as significant and substantial. 

5. Citation 3412282 is modified to eliminate the 

designation of significant and substantial and, as modified, is 

AFFIRMED. 

6. c.w. Mining shall within 30 days of the date of this 

decision pay the following civil penalties for the violations 

found.herein: 

CITATION 30 C.F.R. PENALTY 

1745 
3077726 

3412009 

3412281 

3412282 

3412288 

Distribution: 

48.9(a) 

75.400 

75.313 

75.503 

75.400 

$ 250.00 

178.00 

400.00 

50.00 

300.00 

$1178.00 

!:/l,UL~ .A/Jv?:Jck%~ James A. Broderick 

Administrative Law Judge 

Robert J. Murphy, Esq., U.S. Department of Labor, Office of the 

Solicitor, 1585 F.O.B., 1961 Stout Street, Denver, co 80294 

(Certified Mail) 

Carl E. Kingston, Esq., 53 West Angelo Avenue, P.O. Box 15809, 

Salt Lake City, UT 84115 (Certified Mail) 

slk 

1746 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMIS~ION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

·103-756-6232 

August 14, 1990 

BETH ENERGY MINES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CONTEST PROCEEDING 

Docket No. PENN 90-208-R 

Citation No. 3099484; 6/20/90 

Mine No. 84 

Mine ID No. 36-00958 

ORDER DENYING MOTION FOR CONTINUANCE 

This proceeding concerns a Notice of Contest filed by the 

contestant pursuant to section 105(d) of the Federal Mine Safety 

and Health Act of 1977, challenging a section 104(a) "S&S" 

Citation No. 3099484, charging it with an alleged violation of 

mandatory safety standard 30 C.F.R. § 75.511. The contestant has 

initiated discovery pursuant to Commission Rules 55 and 57, 

29 C.F.R. § 2700.55 and-2700.57, and has filed interrogatories 

and requests for production of documents on the respondent. 

The respondent has filed an answer and a motion for a 

continuance pending the filing of its companion civil penalty 

assessment proceeding. By letter dated July 31, 1990, and 

received on August 2, 1990, the contestant objects to any 

continuance of the matter. In support of its objection, the 

contestant states that while it has not requested an expedited 

hearing, it belieyes that "the matter should move forward in the 

normal course without delay" because the issue presented by its 

contest (the necessary qualifications for a miner to un~ouple 

deenergized high voltage cable) arises with some frequency and 

that a delay in resolving this issue would be inappropriate. The 

respondent has not responded to the contestant's objections for a 

continuance. 

ORDER 

The respondent's motion for a continuance IS DENIED, and the 

matter will be scheduled for a hearing on the merits in the near 

future. However, in view of the presiding judge's current trial 

docket, a hearing is not likely to be scheduled until sometime 

after January, 1991. Under the circumstances, the respondent 

1747 
should have ample time to file lts civil penalty proceeding and 

file a request for a consolidation of the cases. In the 

meantime, the respondent IS ORDERED to timely respond to the 

contestant's discovery requests. 

Distribution: 

R. Henry Moore, Esq., Buchanan Ingersoll, USX Tower, 57th Floor, 

600 Grant Street, Pittsburgh, PA 15219 (Certified Mail) 

Kenneth L. Stein, Esq., Office of the Solicitor, U.S. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

/fb 

1748 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ODELL MAGGARD, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 2=0 1980 

. . Complainant : 

. . 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-1-D 

MSHA Case No. BARB CD 85-48 

CHANEY CREEK COAL CORPORATION,: 

Respondent : 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINSITRATION, (MSHA), 

Complainant 

v. 

. . 

. . 

. . 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-51-D 

MSHA Case No. BARB DC 85-48 

: Dollar Branch Mine 

DOLLAR BRANCH COAL CORPORATION: 

and : 

CHANEY CREEK COAL CORPORATION,: 

Respondents : 

DECISION AND ORDER 

Appearances: Tony Oppegard, Esq., Appalachian Research & 

Defense Fund of Kentucky, Hazard, Kentucky for 

Complainant Maggard; 

Joseph B. Luckett, Esq., Office of the 

Solicitor, U.S. Department of Labor, Nashville, 

Tennessee for the Secretary of Labor; 

No Appearance on behalf of Respondents. 

Before: Judge Melick 

These cases are before me following the Commission 

remand order dated March 27, 1990, and as supplemented on 

June 5, 1990. Hearings on remand were held on August 9, 

1990, at which no representative of Respondents appeared. 

Accordingly they are deemed to have waived their rights to a 

hearing on the remand issues and to their right to 

objections thereat. 

Complainant Maggard seeks additional attorney fees and 

expenses totalling $56,957.55 for work performed during 

appellate proceedings and recalculated interest of $4,246.84. 

The unopposed petitions are legally and factually supported 

and are accordingly granted. 

1749 
This is not a final decision and will not become final 

until completion of discovery and determination by 

Complainant Maggard of whether or not he will file a motion 

to join Mr. John Chaney in these proceedings under an alter 

ego theory of liability. Discovery on this issue must be 

completed on or before October 12, 1990, and qny motion to 

join John Chaney as an individua must be fil 'd within 10 

days thereaft~r. ' 

Distribution: 

Tony Oppegard, Esq., 

Kentucky, Inc., P.O. 

Mail) 

I ~ /\ " :~t~:~h~i~~l;;, 'udg~'~'' 

Appalachian Rel earch & D fense Fund o:· 

Box 360, Hazart, KY 41701 CCert~fied 

Mr. John Chaney, Chaney Creek Coal Corporation, Rt. 1, Box 

286, East Bernstadt, KY 40729 (Certified Mail) 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. 

Department of Labor, 2002 Richard Jones Road, Suite B-201·, 

Nashville, TN 37215 (Certified Mail) 

nb 

1750