May 1982 

Commission Decisions 

5-03-82 

5-03-82 

5-04-82 

5-05-82 

5-05-82 

5-20-82 

5-20-82 

5-20-82 

5-20-82 

5-20-82 

5-20-82 

5-20-82 

5-20-82 

5-20-82 

5-20-82 

5-20-82 

5-20-82 

5-20-82 

5-20-82 

5-26-82 

Eastern Associated Coal Corp. 

Delmont Resources, Inc. 

Capitol Aggregates, Inc. 

Allied Products Co. 

Sam Kennedy d/b/a Energy Salvage Co. 

National Mines Corp. 

Southern Ohio Coal Corp. 

Virginia Pocahontas Co. 

Ranger Fuel Corp. 

Island Creek Coal Co. 

Island Creek Coal Co. 

Island Creek Coal Co. 

Island Creek Coal Co. 

Island Creek Coal Co. 

Princess Susan Coal Co. 

Allied Chemical Corp. 

Ranger Fuel Corp. 

Kentland-Elkhorn Coal Corp. 

The Helen Mining Co. 

Medicine Bow Coal Co. 

Administrative Law Judge Decisions 

5-03-82 

5-11-82 

5-12-82 

5-12-82 

5-14-82 

5-14-82 

5-17-82 

5-18-82 

5-21-82 

5-21-82 

5-21-82 

5-24-82 

5-26-82 

5-26-82 

5-27-8'2 

5-28-82 

5-28-82 

5-28-82 

Peabody Coal Co. 

Victor McCoy v. Crescent Coal Co. 

F & F Mendisco Mining Co. 

Cathedral Bluffs Shale Oil Co. 

United States Steel Corp. 

Carolina Stalite Co. 

Clay Kittanning Coal Co. 

United States Steel Corp. 

Jack Parks v. L & M Coal Corp. 

UMWA 

UMWA 

Oak Mining Co. 

Quarto Mining Co. 

Clay Kittanning Coal Co. 

United States Steel Corp. 

Roger D. Anderson v. Itmann Coal Co. 

Fairfax Trucking Co. 

U.S. Steel Mining Co. 

PITT 76X203(16Nll'r 71-~~) Pg. 835 

PENN 80-268-R Pg. 843 

CENT 79-300-M Pg. 846 

SE 79-46-M Pg. 850 

VINC 78-11 (18MA?8-q) Pg. 852 

KENT 80-130-R Pg. 854 

LAKE 80-142 Pg. 856 

VA 79-131-R Pg. 858 

WEVA 79-218-R Pg. 860 

KENT 80-14-D et al Pg. 862 

KENT 79-216-R Pg. 864 

VA 79-74-R Pg. 866 

VA 79-61-R Pg. 868 

WEVA 79-242-R Pg. 870 

WE·VA 79-423-R Pg. 872 

WEVA 79-148-D Pg. 874 

WEVA 79-217-R Pg. 876 

PIKE 78-399 Pg. 878 

PITT 79-11-P Pg. 880 

WEST 81-163 Pg. 882 

LAKE 82-5-D 

PIKE 77-71 

WEST 80-458-M 

WEST 81-186-M 

LAKE 81-185-M 

SE 80-21-M 

WEVA 81-397 

LAKE 82-36-M 

NORT 75-377 

LAKE 82-70-R 

LAKE 82-71-R 

WEVA 82-5 

LAKE 81-118-R 

WEVA 81-11 

LAKE 81-116-M 

WEVA 80-73-D 

WEVA 81-393-D 

PENN 82-29 

Pg. 889 

Pg. 895 

Pg. 897 

Pg. 902 

Pg. 906 

Pg. 910 

Pg. 911 

Pg. 913 

Pg. 918 

Pg. 921 

Pg. 923 

Pg. 925 

Pg. 931 

Pg. 948 

Pg. 954 

Pg. 963 

Pg. 970 

Pg. 971 

Commission Decisions 

MAY 

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

United States Steel Corporation v. Secretary of Labor, MSHA, Docket Nos. 

LAKE 82-102-RM, etc. (Judge Steffey, April 15, 1982) 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

EASTERN ASSOCIATED COAL 

CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 3, 1982 

Docket No. PITT 76X203 

IBMA 77-28 

. DECISION 

' This case arose under the~~ederal Coal Mine Health and Safety Act 

of 1969, 30 U.S.C. § 801 ~ ~· (1976) (amended 1977) ("the Coal 

Act"). 1/ Apart from the merits of this case, a procedural issue must 

first be addressed. The Commission requested supplemental memoranda 

and held oral argument on the question of whether under the Coal Act an 

operator could obtain review of a notice of violation independent of a 

civil penalty proceeding or a proceeding to review the validity of a 

withdrawal order. Attention was focused on this issue due to the decision of the United States Court of Appeals for the District of Columbia 

Circuit in UMWA v. Andrus (Carbon Fuel Co.), 581 F.2d 888 (1978), cert. 

denied sub nom. Carbon Fuel Co. v. Andrus, 439 U.S. 928 (1978). I-n~­

Carbon Fuel the court, in essence, held that under the Coal Act notices 

of violation not involving an imminent danger could not be reviewed on 

the merits prior to the issuance of a withdrawal order or institution 

of civil penalty ~roceedings. 

In Howard Mullins v. Andrus, 664 F.2d 297 (D.C. Cir. 1980), the 

D.C. Circuit again was confronted with a Coal Act case involving review 

of a notice of violation. Mullins was pending when the decision in 

Carbon Fuel was issued and the court refused to retroactively apply its 

Carbon Fuel holding. Balancing the factors relevant to retroactive 

application of a newly announced principle, the court concluded that" 

retroac~iye application of its Carbon Fuel holding was no~ warranted. 

664 F.2d at 302-305. Therefore, in Mullins the court proceeded to 

review the merits of the notice of violation therein at issue. 

For reasons similar to those of the D.C. Circuit in refusing to 

retroactively apply its Carbon Fuel holding, we believe that it is 

unnecessary at this late date for us to resolve whether, in our view, 

Carbon Fuel or precedent established by other courts and the Board 

of Mine Operations Appeals correctly resolved the issue of review1/ · On March 8, 1978, this case was pending on appeal before the 

Department of Interior's Board of Mine Operations Appeals. Accordingly, 

it is before the Commission for disposition. 30 U.S.C. § 961 (Supp. III 

1979). The Mine Safety and Health Administration (MSHA) has been substituted for its predecessor agency, the Mining Enforcement and Safety 

Administration (MESA). 835 82-5-1 
ability of the merits of notices under the 1969 Coal Act. ]:./ The Coal 

Act was substantially amended in 1977 and this case and three others ]_/ 

are the only remaining Coal Act cases posing this issue. Because of the 

age of these cases, and because we can perceive no realistic adverse 

impact that reviewing the merits of the three remaining cases could have 

on miner safety and health, we will proceed to review the merits at this 

time. 

This case involves the interpretation of 30 C.F.R. § 77.215(j). 

The standard provides in pertinent part: 

All fires in refuse piles shall be extinguished, and 

the method used shall be in accordance with a plan 

approved by the District Manager. 

On June 22, 1976, an inspector of the Mining Enforcement and Safety 

Administration ("MESA") inspected a burning refuse pile located on the 

surf ace of an underground bituminous coal mine owned and operated by 

Eastern Associated Coal Corporation ("Eastern"). The pile is composed 

of refuse deposited by the previous owner of the mine, Delmont Fuel 

Company. At the time of the i~spection in this case, the pile was not 

being used as a depository formine refuse and had not been so used 

since 1953. The refuse pile is located 2 miles from the Eastern mine's 

main portal and 800 to 1,000 feet from Eastern's preparation plant. The 

refuse pile is 1,800 feet long and 400 feet wide. To the west of the 

refuse pile is a railroad track running to the the mine's preparation 

plant. To the east are two roads - one on mine property, the other on 

township property. 

The inspector was advised before he left his office that a plan to 

extinguish the fire had not been submitted to the MESA district manager 

for approval. When the inspector arrived at the mine, he saw smoke 

rising from the pile at several points and smelled a strong sulphurous 

odor. Trash was observed at the base of the pile. Motorcycle tire 

tracks were obseryed on the pile. 4/ Red. dog had been removed from the 

pile. 5/ After viewing the pile the insp-~ctor issued a notice alleging 

a violation of § 77.215(j). The notice stated: 

];./ Lucas Coal Co. v. IBMOA, 522 F.2d 581, 587 (3d Cir. 1975); Lucas v. 

Morton, 358 F. Supp. 900, 903-904 (W.D. Pa. 1973 (3 - judge court); 

Reliable Co~l Corp., 1 IBMA 50 (1971); Freeman Coal Mining Co·., 1 IBMA 

(1970). But see United States v. Fowler, 646 F.2d 859 (4th Cir. 1981) 

(agreeing with rationale of Carbon Fuel). • 

]_/ Inland Steel Coal Co., VINC 77-164, IBMA 77-66 (unabated notice); 

Florence Mining Co. et al., PITT 57-15, etc, IBMA 77-66 (unabated notice); 

. Alabama By-Products Corp., BARB 76-153, IBMA 76-114 (abated notice). 

!±_/ It cannot be determined from the record who was responsible for the 

trash or the tracks. Eastern's miners, however, are instructed never to 

go onto the pile and no evidence was introduced that any ever did. 

Moreover Eastern conducts no work on or at the pile. 

'i../ Red dog. Material of a reddish color resulting from the combustion 

of shale and other mine waste in dumps on the surface. U.S. Department 

of the Interior, Dictionary of Mining, Mineral and Related Terms 904 

(1968). Red dog is commonly used for road repair. Although Eastern had 

in the past allowed the township to remove red dog from the pile, this 

permission had been revoked one-half year before the inspection. 

836 
A plan has not been submitted to the District Manager 

on the method that will be used to extinguish the 

existing fire in the inactive refuse pile •••• 

Eastern claimed that the notice was invalidly issued because the cited 

standard does not apply to the subject refuse pile. The administrative 

law judge agreed. The judge held that, when a burning refuse pile is 

part of an underground mine, in order to prove a violation of the 

standard the Secretary must show: the pile is on mine property; the 

pile is located in a surface work area of the underground mine f}__/; and 

the pile presents a real or potential hazard to a miner in the normal 

course of his employment. The judge held that the Secretary had proved 

the first ~lement, but not the latter two. 

The judge's conclusion that the regulation only applied to refuse 

piles located in "surf ace work areas where miners would reasonably be 

expected to work or travel in the normal course of their employment" was 

based upon his interpretation of section lOl(i) of the Coal Act. He 

found that section lOl(i) "authorizes the Secretary to promulgate 

mandatory safety standards for,_:surface coal mines and for surface work 

areas of underground coal mines." 7/ (Emphasis added by judge). He 

concluded, "the Act by its very terms limits the Secretary's authority 

to regulate surface areas of underground mines and that limitation is 

specifically directed to a work area •..• " (Emphasis added by 

judge). §_/ The judge cited~the title of 30 C.F.R. Part 77 and to 30 

C.F.R. § 77.1 as evidence that the Secretary recognized such a limitation. 

Part 77 is entitled: "Mandatory safety standards, surface coal mines 

and surface work areas of underground coal mines." (Emphasis added). 

30 C.F.R. § 77.1, the scope provision for Part 77, states: 

f}_/ The judge defined "surface work area" as: 

Any surface area of a coal mine which could present a hazard to 

the health and safety of miners in_places where they could reasonably be expected to work or travel in the normal course and scope 

of their employment. 

]_/ Section lOl(i), 30 U.S. C. §. 8ll(i) (1976), stated: 

Proposed mandatory health and safety standards for surface 

coal mines shall be published by the Secretary, in accordance with 

the provisions of this section, not later than twelv~ months after 

the date of enactment of this Act. Proposed mandatoiy health and 

safety standards for surface work areas of underground coal mines, 

in addition to those established for such areas under this Act, 

shall be published by the Secretary, in accordance with the provisions 

of this section, not later than twelve months after the date of 

enactment of this Act. 

!}_/ The judge noted the following statements appearing in the preamble 

when the refuse pile regulations were adopted: 

The final regulations will provide the operator with 

flexibility in constructing refuse piles and impounding 

structures which will present no hazard to coal miners 

in their work. 

(footnote 8, cont'd) 

837 
This part 77 sets forth mandatory safety standards for bituminous, 

anthracite, and lignite surface coal mines, including open pit and 

auger mines, and to the surface work areas of underground coal 

mines, pursuant to section lOl(i) of the [Coal Act]. 

(Emphasis added). 

We find that the judge erred in concluding that a burning refuse 

pile must be located in a surface work area of an underground coal mine 

to be subject to the standard and that the Secretary must prove a 

burning refuse pile presents a real or potential hazard to a miner in 

the normal cause of his employment. 

Section lOl(a) of the Coal Act, 30 U.S.C. § 8ll(a)(l976), granted 

the Secretary the authority to promulgate mandatory standards. That 

section stated: 

The Secretary shall, in accordance with the procedures 

set forth in this section, develop, promulgate, and 

revise •.• improved mandatory safety standards for the 

protection of life and the prevention of injuries in 

a coal mine .••• 

(Emphasis added). Section 3(h) of the Coal Act, 30 U.S.C. § 802(h)(l976), 

defined "coal mine" as: 

[A]n 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 •.•• 

This definition is broad enough to include refuse piles, and it does not 

indicate that the term was meant to be limited by whether work or travel 

transpired at or near the enumerated areas or structures. Section 

77.215(j) was promulgated in the. Federal Register "under the authority 

of section lOl(a) of the 1969 Act." 40 Fed. Reg. 11775 (1975). We 

conclude that section lOl(a)'s mandate to promulgate safety standards 

for the protection of life and the prevention of injuries in a "coal 

mine," as that term is defined in section 3(h), brings refust:! piles in 

surface ar·eas of underground mines under the Secretary's jurisdiction. 

(footnote 8 cont'd.) 

A further addition is the requirement in 77.215(j) and 

77.216(e) that the fire extinguishing operations on refuse piles and 

impounding structures be conducted in accordance with an approved plan. 

This new requirement is justified by the hazardous nature of the 

extinguishing operation and the necessity to ensure that miners employed 

in extinguishing operations are fully acquainted with the procedures 

to be used. (Emphasis added by judge). 40 Fed. Reg. 775-76 (1975). 

838 
In our view, section lOl(i), in essence, was a procedural provision, 

not jurisdictional. It required the Secretary to publish the proposed 

mandatory health and safety standards for surface coal mines and "for 

surface work areas of underground coal mines" "not later than twelve 

months after the date of enactment of [the Coal Act]". The p.urpose of 

this section was to ensure that the Secretary acted promptly in proposing 

mandatory standards for surface mines and surface work areas of underground mines. Quick action by the Secretary was needed because the Coal 

Act itself contained no statutory standards pertaining to surface coal 

mines and very few statutory standards specifically relating to surface 

areas of underground mines. An analysis of the bills from which section 

lOl(i) ultimately emerged indicates that although the term "surface work 

~areas" appeared in Senate bill S. 2917, in section 219(c), the purpose 

of that section was to "require that proposed mandatory safety standards 

be developed and published .•• as soon as possible, but not later than 

twelve months after enactment." U.S. Senate Committee on Labor and 

Public Welfare, Legislative History of the Federal Coal Mine Health 

and Safety Act of 1969, 94th Cong., 1st sess., at 213. The House bill, 

H.R. 13950, had a similar provision for the rapid publication of proposed mandatory standards, but its provisions were restricted to surface 

coai ~ines. Section lOl(h) ofithe House bill stated: 

'Proposed mandatory safety standards for surface coal 

mines shall be developed and published by the Secretary 

not later than twelve months after the enactment of 

this Act. 

At conference the Senate provision was essentially adopted because it 

included a requirement that standards be published for surface work 

areas of underground mines as well as for surface coal mines. Legis. 

Hist. at 1509. Although neither the Senate Committee report nor the 

Conference Report explains why the term "surface work area" was used 

rather than "surface area," we believe it to have been a case of imprecise 

draftsmanship, rather than an attempt to restrict regulatory juris- · 

diction to "surface work areas". As we.have noted, the broad grant of 

authority in the Act afforded the Secretary jurisdiction to regulate 

"an area of land and all ••• property, real or personal •.• upon, under, 

or above the surface ••• used in a•• to be used in, or resulting from, 

the work of extracting in such area bituminous coal". Restricting the 

Secretary 1 s authority to only those portions of the surface areas where 

work or travel occurred, or could be expected to occur, would be inconsistent with the otherwise broad applicability of the ~ct~ 

Moreover, there are logical limits to literalism, one of which is 

when it leads to an incongruous result plainly at variance with the 

policy of a statute when viewed as a whole. United States v. American 

Trucking Associates, 310 U.S. 534, 543-544, (1940). The judge's finding 

that section lOl(i) limits the Secretary's authority in regulating 

surf ace portions of undergrou~d mines to work areas leads to such a 

result. Under it, although a burning refuse pile in a non-work area of 

an underground mine would not be subject to § 77.215(j), an identical 

refuse pile in a non-work area of a surface mine would be, there being 

no "work area" language pertaining to surface mine standards. Thus, we 

conclude that the Coal Act, specifically section lOl(i), did not restrict 

the Secretary to regulating only surface work areas of underground 

mines. 

':839 
Eastern argues, however, that even if section lOl(i) does not limit 

the Secretary, he voluntarily imposed such a restriction up.on himself. 

Eastern notes, as did the judge, the title of Part 77, and the "scope" 

provision at § 77.1, both quoted supra. The phrase "surface work area", 

as used in both the title and the standard, clearly is taken from section 

lOl(i). Indeed, 30 C.F.R. § 77.1 concludes with the statement that the 

standards are set forth "pursuant to section lOl(i)." In view of our 

conclusion that the words "surface work areas of underground coal mines" 

are not used in a jurisdictional sense in section lOl(i), we conclude 

that they do not acquire that sense by their repetition in the standards 

adopted by the Secretary. J_/ 

We also disagree with the judge's holding that the Secretary must· 

establish "that the pile presents a hazard, real or potential, which can 

reasonably be expected to expose a miner to danger in the normal and 

reasonable course of his employment." During the proniulgation of the 

refuse piles standards the Secretary published in the Federal Register 

findings of fact based upon public hearings. 39 Fed. Reg. 38,661 (1974). 

His general finding with respect to refuse piles was that "[c]oal refuse 

piles ••• can present a hazardJto health and safety." His specific 

finding with respect to burning refuse piles was that "[b]urning reJ;use 

piles present a health and safety hazard, and that hazard will be 

decreased or eliminated when the burning pile is extinguished by any 

safe and effective reasons." Id. Thus, the standard's requirement that 

burning refuse piles be extinguished in accordance with an approved plan 

is premised upon the finding that such piles are hazardous. That finding 

having been made, the Secretary need not prove anew the hazardous nature 

of burning refuse piles in every enforcement proceeding. 10/ To prove a 

violation of § 77.21S(j), as with most standards, non-compliance with 

the standard's terms need only be shown, i.e., the refuse pile is 

burning. and a plan has not been filed. Cf. Vecco Construction Co., 

1977-78 CCR OSHD ,[22,247 (OSHRC). 

J_/ Because we reverse the judge's finding that in order to establish a 

violation of § 77.21S(j) the Secretary must establish that the refuse 

pile is located in a surface work area, we need not determine whether, 

as the Secretary argues, the judge adopted too restrictive a definition 

of the term "surface work area." 

10/ Evidence as to the actual extent of the hazard presented by a 

particular burning refuse pile is, of course, relevant in determining 

the gravity of a violation for penalty purposes. 

840 
Accordingly, the judge's decision is reversed and the case is 

remanded for further proceedings consistent with this decision. 11/ 

11/ Chairinan Collyer assumed off ice after this case had oeen considered 

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

new Commissioner possesses legal authority to participate in pending 

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

the Commission to take official action. The other Commissioners reached 

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

assumption of off ice, and participation by Chairman Collyer would 

therefore not affect the outcome. In the interest of efficient 

decision-making, Chairman Collyer elects not to participate in this 

case. 

Former Commissioner Nease participated in considering this case and. 

also voted to reverse the judge's decision, but resigned from the Commission before the decision was ready for signature. 

841 
Distribution 

Sally Rock, Esq. 

Eastern Associated Coal Corporation 

1728 Koppers Building 

Pittsburgh, PA 15219 

Michael McCord, 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 

Charles W. Newcom, Esq. 

Sherman & Howard 

2900 First of Denver Plaza 

633 Seventeenth St. 

Denver, Colorado 80202 

.:]: 

Administrative Law Judge George Koutras 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

842 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DELMONT RESOURCES, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 3, 1982 

Docket No. PENN 80-268-R 

ORDER 

In Secretary of Labor v. Cement Division, National Gypsum Company, 

3 FMSHRC 821 (1981), the Commission established the test under section 

104(d) of the 1977 Mine Act for determining whether a condition created 

by a particular violation is of such nature "as could significantly and 

substantially contribute to the cause and effect of a ••• mine ••• 

hazard." In the instant proceeding, a section 104(d)(l) citation was 

issued. On April 24, 1981, the administrative law judge issued a decision in which he applied the test enunciated in National Gypsum and 

determined that the "evidence [was] insufficient to sustain the allegation that the .•• violation .•• was of such nature as could significantly 

and substantially contribute to the cause and effect of a mine ••• 

hazard." Regarding the "significant and substantial" question, the 

parties tried the case and submitted their post-hearing briefs prior to 

the issuance of National Gypsum. On review, the primary question before 

us is whether the judge correctly determined that the violation was not 

significant and substantial. 

In his brief on review, the Secretary requested that the proceeding 

be remanded to the judge for the presentation of additional evidence if 

we determined that the record was insufficient under National Gypsum to 

sustain the section 104(d)(l) citation. On February 25, 1982, we ordered 

the Secretary to submit an explanation of the additional evidence that 

could be presented at this time to meet the National Gypsum test. On 

March 15, 1982, the Secretary filed a supplemental brief describing 

evidence he could present if the case were remanded. Neither Delmont nor 

the UMWA has opposed the Secretary's request for remand. 

843 82-5-2· 
Having considered the Secretary's response in light of the present 

record, we conclude that remand is appropriate to give the parties an 

opportunity to present evidence relevant to the National Gypsum test. 1./ 

We express no views as to the probative value and weight of the evidence 

described b,Y the Secretary. 

Accordingly, this case is remanded to the Chief Administrative Law 

Judge for reassignment and further proceedings, on an expedited basis, 

consistent with this order. J:../ 

ll Section 113(d)(2)(iii)(C) of the 1977 Mine Act provides in part: 

••• If the Commission determines that further evidence is 

necessary on an issue of fact it shall remand the case for 

further proceedings before the administrative law judge. 

'!:__/ The administrative law judge who rendered the initial decision in 

this matter has since left the Commission. 

844 
Distribution 

Nancy S. Hyde, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Ronald S. Cusano, Esq. 

Rose, Schmidt, Dixon, Hasley 

Whyte and Hardesty 

900 Oliver Building 

Pittsburgh, PA 15222 

Raymond J. Roehler, Esq. 

Harvey A. Zalevsky, Esq. 

102 N. Main Street 

"Suite· 200 

Greensburg, PA 15601 

Covette :Rooney, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

14480 Gateway Bldg. 

3535 Market St. 

Philadelphia, PA 19104 

Mary :Cu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Chief Administrative Law Judge Paul Merlin 

FMSHRC 

1730 K Street, N.W. 

Washington, D.C. 20006 

845 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CAPITOL AGGREGATES, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 4, 1982 

Docket No. CENT 79-300-M 

DECISION 

This proceeding arises under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et~., (Supp. III 1979). The only issue on 

review is whether a ramp used at a facility of Capitol Aggregates, Inc., 

is an elevated roadway within the meaning of 30 C.F.R. § 56.9-22. 1../ 

The cited standard provides that "berms or guards shall be provided on 

the outer bank of elevated roadways." The administrative law judge 

found the ramp was an elevated roadway and that the standard applied. '!:._/ 

For the reasons that follow, we affirm. 

The citation at issue states: 

The elevated ramp leading to the solid fuel loading hopper was 

not equipped with a berm or guard creating a hazard for the 

operator on the front-end loader in case of running off the 

ramp. 

The parties stipulated that the ramp in question was approximately 

thirty feet long and four feet high at the highest point, and that it 

was used by a caterpillar front-end loader for dumping petroleum coke 

into a solid fuel loading hopper. 

In finding that the ramp was an elevated roadway the judge referred 

to dictionary definitions of "ramp," "road," and "roadway," 11 and the 

1/ Capitol does not challenge the.fact that the ramp was "elevated," 

rather it asserts.the ramp is not a "roadway" subject to the standard. 

2/ The judge's decision is reported at 3 FMSHRC 1684 (1981). 

3/ The judge cited definitions in Webster's Third New International 

Dictionary: "roadways:" A strip of land through which a road is constructed and which is physically altered; "road:" An open way or public 

passage for vehicles, persons and animals ••• a private way. The judge 

also cited the definition of "ramp" in Webster's New Collegiate Dictionary 

(1979): A sloping way: as a sloping low walk or roadway leading from one 

level to another. 3 FMSHRC at 1688 (emphasis added). 

846 82-5-3 
fact that "this 'ramp' was used to drive a piece of machinery back and 

forth over the structure." 3 FMSHRC at 1688. Further, on the basis of 

our decision in· Cleveland Cliffs Iron Co., 3 FMSHRC 291 (February 1981), 

the judge rejected Capitol's argument that the standard applies only to 

roadways with one outer bank. Accordingly, the judge concluded that 

Capitol violated section 56.9-22 by failing to provide berms on the 

ramp. 

We affirm the judge's conclusion that the ramp at issue is an 

elevated roadway within the meaning of the cited standard. Contrary to 

Capitol's assertion, this conclusion does not require an impermissible 

stretching of the standard. Rather, as indicated by the dictionary 

definitions relied upon by the judge, the conclusion that some ramps' 

are elevated roadways is rooted in common usage. Furthermore, in light 

of the nature of the use of the ramp at issue and the purpose of the 

cited standard, the conclusion flows from a common sense application of 

the standard to the facts of record. Cf. Burgess Mining and Construction 

Corp., 3 FMSHRC 296 (February 198l)(bridge is an elevated roadway); 

El Paso Rock Quarries, Inc., 3 FMSHRC 35 (January 198l)(bench is an 

elevated roadway). We also hold that the judge properly relied on our 

decision in Cleveland Cliffs Iron Co. in rejecting the argument that 30 

C.F.R. § 56.9-22 applies only to elevated roadways·with one outer bank. 

Finally, we reject Capitol's argument that the presence of 30 

C.F.R. §_ 56.9-63 precludes application of the cited standard. Section 

56.9-63 provides: 

Ramps and dumps should be of solid construction, of ample 

width, have ample side clearance and headroom, and be kept 

reasonably free of spillage. 

"Elevated roadways" is a general descriptive term that encompasses 

a variety of more specific applications. See Burgess, supra; El Paso, 

supra. Although 30 C.F.R. § 56.9-63 further addresses certain safety 

requirements for a particular type of elevated roadway, it does not 

purport to exclusively set forth all safety requirements pertaining to 

ramps. In particular, it does not address the obvious hazard of travelling over the elevated sides of a ramp, nor does it in any way suggest 

that section 56.9-22's general requirement of berms on elevated roadways 

is not applicable. In this situation we conclude that it is appropriate 

to apply section 56.9-~2 to the ramp involved. See H.B. Zachry Co. v. 

OSHRC, 638 F.2d 812, 8l7-818 (5th Cir. 1981). 

847 
Accordingly, the decision of the administrative law judge is 

affirmed. !±_/ 

!±_/ Capitol's pending motion to disregard the Secretary's brief is 

denied. 

848 
Distribution 

Richard L. Reed, Esq. 

Johnston, Krog & Vives 

2900 Tower Life Building 

San Antonio, Texas 78205 

Leslie J. Canfield, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Virgil Vail 

FMSHRC 

333 West Colfax Ave., Suite 400 

Denver, Colorado 80204 

849 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

.ADMINISTRATION (MSHA) 

v. 

ALLIED PRODUCTS COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 5, 1982 

· • Docket No. SE 79-46- M 

ORDER 

In Allied Products Co. v. Federal Mine Safety and Health Review 

Commission, No. 80-7935, 5th Cir. Unit B (February 1, 1982), rehearing 

den. March ~' 1982, the court affirmed a final order of the Commission 

finding that Allied Products violated three mandatory safety standards. 

2 FMSHRC 2517 (ALJ, Sept. 1980). The court found, however, that the 

penalties assessed were an abuse of discretion and remanded for further 

proceedings "with instructions to recalculate the penalties based on the 

existing record and on considerations outlined in this opinion." The 

court's mandate was received by the Commission on April 9, 1982. 

We need not address at this time the court's discussion of the 

relationship between the Commission's statutory authority to assess 

penalties (30 U.S.C. § 820(i)) and the Secretary of Labor's penalty 

assessment regulations. 30 C.F.R. Part 100. Rather, we leave to the 

administrative law judge the initial determination of the necessary and 

appropriate action in light of the court's decision and remand. 

Accordingly, the case is remanded to the administrative law judge 

for further proceedings. 

850 

82-5-4 
Distribution 

Gilbert E. Johnston 

Patricia Clotfelter 

Johnston, Barton, Proctor, Swedlaw & Naff 

1212 Bank for Savings Building 

Birmingham, Alabama 35203 

Ann Rosenthal 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge William Fauver 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

851 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SAM KENNEDY d/b/a/ ENERGY 

SALVAGE COMP ANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 5, 1982 

ORDER 

Docket Nos. VINC 78-11 

78-12 

78-13 

78-14 

78-15 

IBMA 78-4 

The Secretary of Labor's unopposed motion for voluntary dismissal 

of his appeal is granted. 

Collyer, 

852 82-5-5 
Distribution 

Linda Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd .. 

Arlington, Virgini~ 22203 

D. Michae~ Riva, Esq. 

115 East Main Street 

West Frankfort; Illinois 62896 

Administrative Law Judge George Koutras 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

853 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

May 20, 1982 

NATIONAL MINES CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket No. KENT 80-130-R 

·oRDER 

In Secretary of Labor v. Island Creek Coal Co., et al., Nos. 80-2405, 

etc., D.C. Cir., April 27, 1982, the court remanded this case to the 

Commission for further proceedings consistent with the court's decision 

in UMWA v. FMSHRC, Nos. 79-2503, etc., D.C. Cir., February 23, 1982. 

Accordingly, this case is remanded to the administrative law judge for 

further proceedings consistent with the court's order. 

854 82-5-10 
Distribution 

Ann S. Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Robert L. Elliot, Esq. 

Harbison, Kessinger, Lisle & Bush 

400 Bank of Lexington Building 

Lexington, Kentucky 40507 

Harrison Combs, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge Richard Steffey 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

855 

National Mines Corp. 

KENT 80-130-R 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 20, 1982 

Docket No. LAKE 80-142 

SOUTHERN OHIO COAL COMPANY 

ORDER 

In Secretary of Labor v. Southern Ohio Coal Co., No. 81-2299, 

D.C. Cir., April 27, 1982, the court remanded this case to the Commission for further proceedings consistent with the court's decision in 

UMWA v. FMSHRC, Nos. 79-2503, etc., D.C. Cir., February 23, 1982. 

Accordingly, the case is remanded to the administrative law judge for 

further proceedings consistent with the court's order. 

856 

82-5-11 
Distribution 

Ann S. Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

David.M. Cohen, Esq.· 

American Electric Power Service Corp. 

P.O. Box 700 

Lancaster, Ohio 43130 

Administrative Law Judge Michael Lasher 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

857 

Southern Ohio Coal 

LAKE 80-142 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 20, 1982 

VIRGINIA POCAHONTAS COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

ORDER 

Docket Nos. VA 79-131-R 

VA 79-137-R 

In Secretary of Labor v. Island Creek Coal Co., et al., Nos. 80-

2405, etc., D.C. Cir., April 27, 1982, the court remandea-these cases 

to the Commission for further proceedings consistent with the court's 

decision in UMWA v. FMSHRC, Nos. 79-2503, etc., D.C. Cir., February 23, 

1982. Accordingly, these cases are remanded to the administrative law 

judge for further proceedings consistent with the court's order. 

858 

82-5-12 
Distribution 

Ann S. Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Marshall S. Peace, Esq. 

Island Creek Coal Company 

2355 Harrodsburg Road 

P.O. Box 11430 

Lexington, Kentucky 40575 

Harrison Combs, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge Richard Steffey 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

859 

Vi;rgi.ni,a J>ocfihontas 

VA 79-131-R 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RANGER FUEL CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION(MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 20, 1982 

Docket No. WEVA 79-218-R 

ORDER 

In Secretary of Labor v. Ranger Fuel Corp., No. 81-1388, D.C. Cir., 

April 27, 1982, the court remanded this case to the Commission for 

further proceedings consistent with the court's decision in UMWA v. 

FMSHRC, Nos. 79-2503, etc., D.C. Cir., February 23, 1982. Accordingly, 

this case is remanded to the administrative law judge for further 

proceedings consistent with the court's order. 

860 

82-5-13 
Distribution 

Ann S. Rosenthal, E~q. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Donald R. Johnson 

Ranger Fuel Corporation 

Lebanon, Virginia 24266 

Harrison Combs, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge Gary Melick 

FMSHRC. 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

861 

Ranger Fuel Corp. 

WEVA 79-218-R 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 20' 1982 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

on behalf of 

Anthony E. Heriges, 

Tom Antonini, Johnny Gibson and 

Larry Haley, 

v. 

ISLAND CREEK COAL COMPANY 

Docket 

ORDER 

Nos. KENT 80-14-D 

KENT 80-15-D 

KENT 80-22-D 

KENT 80-23-D 

KENT 80-42-D 

KENT 80-52-D 

In Secretary of Labor v. FMSHRC, No. 80-1350, D.C. Cir., April 27, 

1982, the court remanded these cases to the Commission for further 

proceedings consistent with the court's decision in UMWA v. FMSHRC, Nos. 

79-2503, ~tc., D.C. Cir., February 23, 1982. Accordingly, the cases are 

remanded to the chief administrative law judge for further proceedings 

consistent with the court's order. 

862 

82-5-8 
Distribution 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Marshall ·s. Peace, Esq. 

Assistant Corporate Counsel 

Island Creek Coal Company 

2355 Harrodsburg Road 

P.O. Box 11430 

Lexington, Kentucky 40575 

Chief Administrative Law Judge Paul Merlin 

FMSHRC 

1730 ~ Street, N.W. 

Washington, D.C. 20006 

863 

Island Creek 

KENT 80-14-D 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ISLAND CREEK COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH' 

ADMINISTRATION (MSHA) 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ISLAND CREEK COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

May 20, 1982 

ORDER 

Docket Nos. KENT 79-216-R 

WEVA 79-183-R 

WEVA 79-184-R 

Docket No. WEVA 80-72 

In Secretary of Labor v. Island Creek Coal Co., No. 80-2201, D.C. 

Cir., Aprii 27, 1982, the court remanded these cases to the Commission 

for further proceedings consistent with the court's decision in UMWA v. 

FMSHRC, Nos. 79-2503, etc., D.C. Cir., February 23, 1982. Accordingly, 

the cases are remanded to the administrative law judge for further 

proceedings consistent with the court's order. 

864 

82-5-9 
Distribution 

Ann S. Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

William R. Bodell, II 

Island Creek Coal Company 

P.O. Box 11430 

Lexington, Kentucky 40575 

Harrison Combs, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge Gary Melick 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

865 

Island Creek Coal 

KENT 79-216-R 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

ISLAND CREEK COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

May 20, 1982 

Docket No. VA 79-74-R 

UNITED MINE WORKERS OF AMERICA 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ISLAND CREEK COAL COMPANY 

Docket No. VA 80-9 

ORDER 

In Secretary of Labor v. Island Creek Coal Co., et al., Nos. 80-

2405, etc., D.C. Cir., April 27, 1982, the court remanded these cases 

to the Commission for further proceedings consistent with the court's 

decision in UMWA v. FMSHRC, Nos. 79-2503, etc., D.C. Cir., February 23, 

1982. Accordingly, the cases are remanded to the administrative law 

judge for further proceedings consistent with the court's order.· 

866 82-5-14 
Distribution 

Ann S. Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia · 2221_; 3 

Marshall S •. Peace, Esq. 

Island Creek Coal Compan,-

P.O. Box 11430 

Lexington, Kentucky 405/5 

Joyce A. Hanula 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge Richard Steffey 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia -'2203 

86 11' 

Island Creek Coal 

VA 79-74-R 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ISLAND CREEK COAL COMPANY 

and 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

May 20, 1982 

VIRGINIA POCAHONTAS COMPANY 

Docket Nos. VA 79-61-R 

VA 79-62-R 

VA 79-63-R 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS OF AMERICA 

ORDER 

In Secretary of Labor v. Island Creek Coal Co., et al., No. 80-

1859, D.C. Cir., April 27, 1982, the court remanded these cases to the 

Connnission for further proceedings consistent with the court's decision. 

in UMWA v. FMSHRC, Nos. 79-2503, etc., D.C. Cir., February 23, 1982. 

Accordingly, the cases are remanded to the administrative law judge for 

further proceedings consistent with the court's order. ' 

A. E. Lawson,~mmissioner 

868 82-5-15 
Distribution 

Ann S. Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

William K. Bodell, II 

Virginia Pocahontas Company 

P.O. Box 11430 

Lexington, Kentucky 40575 

Administrative Law Judge George Koutras 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

869 

Virgini~ Pocahontas 

VA 79-61-R 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ISLAND CREEK COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 20, 1982 

Docket No. WEVA 79-242-R 

ORDER 

In Secretary of Labor v. FMSHRC, No. 80-1630, D.C. Cir., April 27, 

1982, the court remanded this case to the Commission for further proceedings consistent with the court's decision in UMWA v. FMSHRC, Nos. 

79-2503, etc., D.C. Cir., February 23, 1982. Accordingly, the case 

is remanded to the chief administrative law judge for further proceedings consistent with the court's order. 

A. E. Lawso', Commissioner 

i 

870 82-5-16 
Distribution 

Ann S. Rosenthal, Esq. 

Office of the Solici.tor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

William K. Bodell, II 

Island Creek Coal Company 

P.O. Box 11430 

Lexington, Kentucky 40575 

Harrison Combs, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Chief Administrative Law Judge Paul Merlin 

FMSHRC 

1730 K Street, N.W. 

Washington, D.C. 20006 

871 

Island Creek Coal 

WEVA 79-242-R 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 20, 1982 

PRINCESS SUSAN COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket No. WEVA 79-423-R 

ORDER 

In Secretary of Labor v. FMSHRC, No. 80-1449, D.C. Cir., April 27, 

1982, the court remanded this case to the Commission for further proceedings consistent with the court's decision in UMWA v. FMSHRC, Nos. 

79-2503, etc., D.C. Cir., February 23, 1982. Accordingly, the case is 

remanded to the administrative law judge for further proceedings consistent with the court's order. 

872 82-5-17 
Distribution 

Ann S. Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

C. Lynch Christian, Esq. 

Jackson, Kelly, Holt & O'Farr~ll 

P.O. Box 553 

Charleston, West Virginia 25322 

Harrison Combs, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge Gary Melick 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

873 

Princess Susan Coal 

~VA. 79""423..-R 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

Arnold J. Sparks, Jr. 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 20, 1982 

Docket No. WEVA 7.9-148-D 

ALLIED CHEMICAL CORPORATION 

ORDER 

On February 23, 1982, the United States Court of Appeals for the 

D.C. Circuit issued its decision in this case·reversing the decision of 

the Commission and remanding for further proceedings. UMWA v. FMSHRC, 

Nos. 79-2503, etc., D.C. Cir. (consolidated cases). Accordingly, we 

remand to the administrative law judge for further proceedings consistent 

with the court's decision. 

874 82-5-18 
Distribution 

Ann S. Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Marshall C. Spradling, Esq. 

Spillman, Thomas, Battle & Klostermeyer 

P.O. Box 273 

Charleston, West Va. 25321 

Harrison Combs, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge Joseph Kennedy 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

875 

Allied Chemical 

WEVA 79-148-D 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

RANGER FUEL CORPORATION, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 20, 1982 

Docket No. WEVA 79-217-R 

ORDER 

In Secretary of Labor v. Island Creek Coal Co., et al., Nos. 

80-2405, etc., D.C. Cir., April 27, 1982, the court remanded this case 

to the Commission for further proceedings consistent with the court•s 

decis.ion in UMWA v. FMSHRC, Nos. 79-2503, etc., D.C. Cir., February 23, 

1982. Accordingly, this case is remanded to the chief administrative 

law judge for further proceedings consistent with the court's order. 

876 82-5-19 
Distribution 

Ann S. Rosenthal, Eaq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Fletcher A. Cooke, Esq. 

Ranger Fuel Corporation 

Lebanon, Virginia 24266 

Harrison Combs, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Chief Administrative Law Judge Paul Merlin 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

877 

Ranger Fuel Corp. 

WEVA 79-217-R 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

KENTLAND-ELKHORN COAL 

CORPORATION, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 20, 1982 

Docket No. PIKE 78-399 

UNITED MlNE WORKERS OF AMERICA 

ORDER 

On February 23, 1982, the.United States Court of Appeals for the 

D.C~ Circuit issued its decision in this case reversing the decision of 

the c6mmission and remanding for further proceedings. UMWA v. FMSHRC, 

Nos. 79-2503, etc., D.C. Cir. (consolidated cases). Accordingly, we 

remand to the administrative law judge for further proceedings consistent with the court's decision. 

878 82-5-20 
Distribution 

Ann S. Rosenthal, Esq. 

Office of the Solicitor 

U.S.Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

C.Lynch Christian, Esq. 

Jackson, Kelly, Holt & O'Farrell 

P.O. Box 553 

Charleston, West Virginia 25322 

Harrison Combs, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 ~ 

Administrative Law Judge Michael Lasher 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

879 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

THE HELEN MINING COMPANY 

.. 1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

May 20, 1982 

Docket No. PITT 79-11-P 

ORDER 

On February 23, 1982, the United States Court of Appeals for the 

D.C. Circuit issued its decision in this case reversing the decision of 

the Commission and remanding for further proceedings. UMWA v. FMSHRC, 

Nos. 79-2503, etc., D.C. Cir. (consolidated cases). Accordingly, we 

remand to the administrative law judge for further proceedings consistent with the court's decision. 

880 

82-5-21 
Distribution 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Todd Peterson, Esq. 

Crowell & Moring 

1100 Connecticut Ave,, N.W. 

Washington, D.C. 20036 

Harrison Combs, Esq. 

UMWA 

900 15th St., NW 

Washington, D.C. 20005 

Chief Administrative Law Judge Paul Merlin 

FMSHRC 

1730 K Street, N.W. 

Washington, D.C. 20006 

881 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MEDICINE BOW COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 26, 1982 

Docket Nos. WEST 81-163 

WEST 81-164 

DECISION 

This consolidated case on interlocutory review involves two civil 

penalty proceedings arising under section llO(a) of the Federal Mine 

Safety and Healtμ Act of 1977, 30 U.S.C. § 801 et seq. (Supp. III 1979). 

The issue is whether the Secretary's admitted failure to file his 

penalty proposals in the two proceedings below within the 45-day period 

prescribed by Commission Rule 27, 29 C.F.R. § 2700.27, required dismissal of the cases. For the reasons discussed below, we affirm the 

administrative law judge's conclusion that under the test announced in 

Salt Lake County Road Department, 3 FMSHRC 1714 (1981), dismissal was 

not warranted on the facts present in this record. 

The facts are not disputed. In the first case (Docket No. WEST 81-

163), an MSHA inspector issued five citations to Medicine Bow Coal 

Company during the period June 24, 1980, through August 12, 1980. l./ In 

the second case (Docket No. WEST 81-164), the same MSHA inspector issued 

Medicine Bow another citation on August 26, 1980. 2/ On December 22, 

1980, Medicine Bow received the Secretary's proposed assessments in both 

cases for the six citations. Medicine Bow timely sent the Secreta.ry 

notices of contest by certified mail in both cases. According to the 

certified mail return receipts, the notice of contest in the first case 

was received in the Secretary's Denver, Colorado Assessment Office on 

January 19, 1981, and the notice in the second case was received on 

January 20, 1981. 

1/ The citations charged violations of various regulations applicable 

to surface coal mining operations. One citation alleged a violation of 

30 C.F.R. § 77.504 (damaged insulation on electrical equipment); another 

alleged a violation of 30 C.F.R. § 77.603 (improper clamping of trailing 

cables); and three alleged violations of 30 C.F.R. § 77.1104 (accumulations of combustible material). 

'.!:_/ This citation alleged a violation of 30 C.F.R. § 77.1605(b) (inadequate 

brakes for mobile equipment). 

882 

82-5-27 
On February 2, 1981, the Secretary sent copies of both notices of 

contest to the Commission's Washington, D.C. office, and on February 9, 

1981, the Commission assigned docket numbers to the two cases. (Commission Rule 26, 29 C.F.R. § 2700.26, requires the Secretary to 

"immediately transmit to the Commission the notice .of contest, at which 

time a docket number will be assigned and all parties notified.") On 

March 20, 1981, the Secretary mailed his penalty proposals in both cases 

to the Commission, and the documents were received on March 23, 1981. '}_/ 

In relevant part, Commission Rule 27 provides: 

(a) When to file. Within 45 days of receipt of a timely 

notice of contest of a notification ~r proposed assessment of 

penalty, the Secretary shall file a proposal for a penalty 

with the Commission. 

Applying Rule 27 and with January 19 and 20, 1981, as the respective 

dates on which the Secretary received Medicine Bow's notices of contest, 

the Secretary's penalty proposals were due to be filed on March 5, 1981, 

in the first case, and March 8, 1981, in the second. 4/ Since the 

Secretary filed on March 20, 1981 (n. 3 below), his proposals were a 

maximum of 15 days late. 

In both:cases, Medicine Bow filed motions fer dismissal with the 

judge based on the late filing of the Secretary's penalty proposals. In 

separate orders issued on August 7, 1981, the judge denied the motions 

on the basis of our decision in Salt Lake, which was issued on July 2~, 

1981, after all the relevant filings had occurred in these two cases. 

ll The certificates of service and envelopes used for mailing reflect 

that the Secretary apparently mailed the penalty proposals by certified 

mail, although the return receipts are not included in the formal files. 

The judge found that there was "no indication in the file" that the 

Secretary had sent the proposals by certified mail, and treated the 

documents as having been filed on March 23, 1981, when they were 

received by the Commission. We give the Secretary the benefit of the 

doubt in this matter and treat his proposals as having been filed on 

March 20, 1981, when they were apparently sent by certified mail. See 

Commission Rule 5(d), 29 C.F.R. § 2700.5(d) (as relevant here, filing is 

effective upon receipt or upon mailing by certified or registered mail, 

return receipt requested). In any event, the three-day difference in 

the filing date does not affect our resolution of this case. 

!!:_/ The filing date in the second case was actually Saturday, March 6, 

1981, but Commission Rule 8(a), 29 C.F.R. § 2700.8(a), would move the 

due date to the following Monday. 

883 
This case basically involves a straightforward application of Salt 

Lake to the relevant facts. Nevertheless, there are a few preliminary 

matters on computation of time and the Secretary's response to Salt Lake 

which we address before moving to the major analysis. 

We affirm the judge's determination that the Secretary will be 

deemed to have received a notice of contest sent by certified or 

registered mail on the date indicated on the return receipt (in this 

case, January 19 and 20). ii We disagree with the judge, however, that 

the filing time for penalty proposals is augmented by the 5 days that 

Commission Rule 8(b), 29 C.F.R. § 2700.8(b), allows for filing documents 

in response to those served by mail. On review, the Secretary disavows 

reliance on this 5-day bonus period. Br. 8 n. 4. The 45-day period in 

Rule 27 is a sufficient amount of time tO. allow for the processing of 

mail. We fear that further delay would be the inevitable by-product of 

reading Rule 8(b) into Rule 27. We hold, therefore, that Rule 8(b) does 

not apply to the Secretary's filing of penalty proposals. 

In his brief to us, the Secretary states that "the test established 

in Salt Lake reflects the appropriate factors which an administrative 

law judge should consider in deciding whether or not to accept a latefiled proposal for penalty." Br. 6. However, the Secretary takes issue 

with a major premise of Salt Lake--namely, that Commission Rule 27 

"implements" the statutory directive in section 105(d) of the Mine Act 

that "the Secretary shall immediately advise the.Commission of [a notification of contest of penalty], and the Commission shall afford an opportunity 

for hearing." See Salt Lake, 3 FMSHRC at 1715. The Secretary contends 

that he satisfies this statutory directive by complying with Commission 

Rule 26, which, as noted above, requires the Secretary after receipt of 

a notice of contest to "immediately transmit" the notice to the Commission 

so that a docket number can be assigned. 

2f We fully endorse the judge's rejection of the Secretary's argument 

that the date on which such documents are internally stamped "received" 

should be the notification date. As he stated: 

The purpose of sending a document by certified mail is to 

provide the sender confirmation of its receipt by the proper 

party and the date of receipt. This is the only date the mine 

operator has notice of and upon which it can base any subsequent 

actions. 

The Secretary's statement that it must rely on [internal 

bureaucratic processing of the mail] does not support its 

position. Mine operators as well could contend that they have 

various off ice procedures upon which they must rely that may 

delay the actual receipt of a notice from the government by 

the individual charged with the responsibility of responding 

to that document. The law has traditionally recognized the 

date on the return receipt as evidence of the date a document 

was received. I see no reason to give special consideration 

to the bureaucratic procedures of the government. 

(Footnote continued) 

884 
The Secretary takes too narrow a view of the relationship of Rules 

26 and 27 to section 105(d). As developed in Salt Lake, Congress' 

overriding concern in enacting section 105(d) was providing for prompt 

penalty enforcement. To effectuate that goal, the Secretary has two 

related duties under Commission rules after receiving a notice of 

contest: notifying the Commission's docket office in order that a 

docket number can be assigned, and filing his penalty proposal so that 

the crucial stage of the pleading process is started, leading to the 

hearing that the Commission must provide under section 105(d). That 

hearing requires more than a docket number; it requires the filing of a 

penalty proposal as an essential pleading. Both procedural steps are a 

form of "notification," one for clerical purposes, and the other for 

pleading purposes; both implement the Mine Act's mandate for prompt 

penalty assessment. If the Secretary believes that his clerical notice 

to the docket office under Rule 26 is sufficient for "notification of 

the Conunission," that may well explain the delays in filing penalty proposals. We accordingly reject the Secretary's position. We now turn to 

the issue of whether the judge properly refused to dismiss the cases. 

The judge correctly interpreted Salt Lake as creating a two-part 

test. Salt Lake first established that the Secretary must show adequate 

cause for any delayed filing. 3 FMSHRC at 1715-17. The Secretary's 

excuse here is basically the same one accepted as minimally adequate in 

Salt Lake: insufficient clerical help. The excuse was presented in more 

detail in these cases, and considerably less delay was involved than in 

Salt Lake. The significant operative events in the two proceedings 

below occu~red prior to our warning in Salt Lake and, thus, the Secretary 

did not have the benefit of those views when the late filings occurred. 

Had the delay occurred after our admonition in Salt Lake, our conclusion 

as to whether adequate cause was established might be different. §_/ 

We also held in Salt Lake that adequate cause notwithstanding, 

dismissal could be required where an operator demonstrates prejudice 

caused by the delayed filing. 3 FMSHRC at 1715-18. Medicine Bow has 

shown no specific claim of prejudice such as missing witnesses, or 

lateness so great as to unduly delay a hearing. Medicine Bow's argument 

that during the pend.ency of the case it is effectively forced to comply 

with MSHA's interpretation of standards and that the citations are 

carried on MSHA's records, presents nothing more than the unavoidable 

consequences of a contested citation faced by all operators. As the 

judge reasoned, the relatively short delay here did not result in any 

significantly later hearing, and if Medicine Bow wanted expedited proceedings, it should have so moved. In short, Medicine Bow has failed 

fn. ~ continued 

The Secretary did not press this argument on review. The Secretary also 

states that steps have been taken to improve the internal mail routing 

of notices of contest--a development that we hope augurs well for 

increased efficiency in processing penalty cases. 

6/ We reject the suggestion in the Secretary's brief that unless his 

delayed filing is caused by "significant malfeasance," a penalty proceeding should not be dismissed absent prejudice to the operator. Our 

test is adequate cause, not absence of malfeasance, significant or 

otherwise. 

885 
to show a delay so great that preparation or presentation of its case 

was prejudiced. 

On the basis set forth above, we affirm the judge. We vacate our 

stay pending interlocutory review, and remand these cases to the judge 

for further proceedings. 

886 
Distribution 

Ann S. Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Brent L. Motchan, Esq. 

Medicine Bow Coal Company 

500 North Broadway 

St. Louis, Missouri 63102 

Administrative Law Judge John Morris 

FMSHRC 

333 West Colfax Ave., Suite 400 

Denver, Colorado 80204 

887 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAY 3 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMinISTRATION (MSHA), 

Complaint of Discharge, 

Discrimination, or Interference 

ex rel Phillip Dennis Irvin, 

et al., 

Docket No. LAKE'82-5-D 

Applicants Eagle No. 2 Mine 

v. 

PEABODY COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. 

Department of Labor, Chicago, Illinois, for Complainants; 

Thomas R. Gallagher, Esq., and Hichael 0. McKown, Esq., 

St. Louis, Missouri, for Respondent. 

Administrative Law Judge Broderick 

STATEHENT OF THE CASE 

This proceeding is an action brought by the Secretary of Labor on 

behalf of 70 miners employed in February 1981 at Respondent's Eagle 

No. 2 Mine alleging that the named miners were discriminated against in 

violation of section 105(c) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 ~~· Pursuant to notice, a hearing was held in 

St. Louis, Missouri, on February 18, 1982. Forrest A. Younker was 

called as an adverse witness by Applicants and Ownly Franklin Williams, 

Phillip Dennis Irvin, William Henry Gibson and Narnie E. Nangle testified on behalf of Complainants. Forrest A. Younker testified on behalf 

of Respondent. The parties agreed that the depositions of Narnie E. 

Nangle, Robert Walker and Hike Wolfe may be received as evidence. 

Sixteen joint exhibits were admitted, and 2 additional exhibits were 

offered by Applicants and admitted. Posthearing bLiefs were filed by 

both parties. 

Based on the entire record and considering the contentions of the 

parties, I make the following decision: 

889 

1982 
Findings of Fact 

1. At all times pertinent 

operator of ~n underground coal 

known as the Eagle No. 2 Mine. 

to this decision, Respondent was the 

mine in Gallatin County, Illinois, 

Respondent is a large operator. 

2. The Complainants herein were miners employed at the Eagle No. 2 

Mine. 

3. There were three shifts in the subject mine, denominated A, B, 

and C. The hours were 8 a.m. to 4 p.m., 4 p.m. to 12:01 a.m. and 

12:01 a.m. to 8:00 a.m. respectively. 

4. Three shower room facilities were maintained at the mine, one 

for male employees, one for female employees and one for foremen. 

5. The male employee's shower room was approximately 40 feet long, 

12 feet wide and 7 feet high. The floor and walls were concrete. There 

were two doors and no windows. On February 12, 1981, there were three 

flourescent lights in the room suspe.nded from a metal ceiling, each 

with two bulbs, a metal casing and a plexiglass bottom. There were four 

ventilation fans and two floor drains with metal grates. There were 

approximately 25 to 30 shower heads. 

6. Above the shower room on a metal floor was a 3,000 gallon 

water tank and four electrically operated water heaters. 

7. On February 12, 1981, during the C shift (12:01 a.m. to 

8:00 a.m.), a leak developed in the hot water tank. Repairs were begun 

on the tank before 8:00 a.m., and hot water was not available for the 

C shift employees. The employees on the A shift were assured that the 

tank would be repaired prior to the completion of their shift, and 

entered the mine on the basis of that assurance. The tank was repaired 

about 10:00 a.m. but developed another leak at about 11:00 a.m. This 

leak could not be repaired without completely draining the tank and 

making showers unavailable for both the A and B shift employees. A 

trough was made to drain the leaking water down through the roof into 

the shower room. 

8. The leaking water entered the fluorescent light fixtures at 

the north end of the room. Water collected in the fixture and dripped 

down on to the floor of the shower room. The wire was cut to the light 

but the power remained on. 

9. Rep~esentatives of the miners were concerned about the danger 

involved to those who might shower in these circumstances and had a 

meeting with mine management, commencing at about 3:55 p.m., February 12. 

The B shift employees did not enter the mine at the beginning of the 

B shift because of this controversy. 

890 
10. The Hine Superintendent and the Representatives of the miners 

discussed some alternative solutions to the problem: (1) drain the tank 

in order to repair it. However, this would make the shower unavailable 

to all the employees on the three shifts. (2) Use the female employees' 

and foremens' shower rooms. However this would provide only 11 showerheads for 77 employees on the B shift. (3) Cut off the power and 

install a temporary lighting system using cap lamps. The third alternative was proposed by the Superintendent to the employee representatives 

but they rejected it and called State and Federal inspectors. 

11. The State inspector arrived at the mine at about 6:00 p.m. 

He found some "irregular things" in one of the heaters which were 

repaired immediately. He stated to the miners representatives that 

he saw nothing wrong in using temporary lighting in the shower room 

until t;-he tank was repaired on the weekend. 

12. The miners on the B crew were not satisfied, refused to go 

to work and left the mine premises. 

13. A federal inspector arrived at the mine at about 10:30 p.m. 

At that time the power had been cut off to the flourescent lights and 

certain conditions respecting the heater had been or were being taken 

care of. The federal inspector stated that he would have no objection 

to the use of battery operated cap lamps to provide light for the 

shower room. 

14. Complainant William Gibson who worked on the C shift rode to 

work with five other employees from their homes in Kentucky (about 

80 miles or more to the mine). Because the shower room was not available 

the previous morning, Gibson called the mine office before leaving for 

work on January 12 (he was to work 12:01 to 8:00 on January 13) and 

was assured that the tank would be repaired in time for his shift. 

15. When Mr. Gibson and his crew arrived at the mine, the tank 

was still being worked on, and the lights in the shower room were off. 

Because he objected to these conditions, Mr. Gibson and eight others 

from the C shift (calling themselves "the boys from Kentucky") refused 

to go underground and went home "for safety reasons." 

16. The other members of the C shift worked their regular shift 

and took showers afterwards using camp lamps for lighting. 

17. The employees on Band C shifts were not paid for the shift 

in which they refused to work. Each also received a letter of warning 

of disciplinary action. 

891 
18. William Gibson received a written notice of suspension with 

intent to discharge. 

19. Gibson filed a grievance which went to arbitration. Gibson 

was reinstated pursuant to an arbitrator's award. 

20. Prior to the hearing in this case, the letters of discipline 

issued to the Complainants herein were rescinded and removed from 

their employment records. 

STATUTORY PROVISION 

Section 105(c)(l) of the Act provides: 

(c)(l) No person shall discharge or in any manner 

discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, representative of miners or applicant for employment in any 

coal or other mine subject to this Act because such 

miner, representative of miners or applicant for employment has filed or made a complaint under or related to 

this Act, including a complaint notifying the operator 

or the operator's agent, or the representative of the 

miners at the coal or other mine of an alleged danger 

or safety or health violation in a coal or other mine, 

or because such miner, representative of miners or 

applicant for employment is the subject of medical 

evaluations and potential transfer under a standard 

published pursuant to Section 101 or because such miner, 

representative of miners or applicant for employment 

has instituted or caused to be instituted any proceeding under or related to this Act or has testified or is 

about to testify in any such proceeding, or because of 

the exercise by such miner, representative of miners or 

applicant for employment on behalf of himself or others 

of any statutory right afforded by this Act. 

ISSUES 

1. Were Applicants disciplined by Respondent for activity 

protected under the :t-iine Act? 

2. If so, what is the remedy for the violation? 

892 
CONCLUSIONS OF LAH 

1. Respondent is subject to the provisions of the Federal Mine 

Safety and Health Act of 1977, and the undersigned has jurisdiction 

over the parties and subject matter of this proceeding. 

2. Applicants, miners on the B and C shifts, failed to establish 

that their refusal to perform work on February 12 and 13, 1981, 

resulted from a reasonable, good faith belief that it was hazardous to 

do so. 

DISCUSSION 

Refusal to perform work is protected under section 105(c)(l) of the 

Act if it results from a good faith belief that the work involves safety 

hazards, and if the belief is a reasonable one. Secretary of Labor/Pasula 

v. Consolidation Coal Co., 2 FMSHRC 2736, 2 BNA MSHC 1001 (1980), rev'd 

on other grounds sub nom Consolidation Coal Co. v. Marshall, F.2d 

(3rd Cir. 1981);-Secretary of Labor/Robinette v. United Castle Coal 

Co., 3 FHSHRC 803, 2 BNA MSHC 1213 (1981). I conclude that the objections 

raised by the B shift miners to showering in a room where water was 

running through electric light fixtures were reasonable and were made in 

good faith. Respondent concedes that at that time the miners had a good 

faith reasonable belief of the possibility of a shock hazard. However, 

Respondent offered an alternative, i.e., cutting off the electricity and 

using temporary lighting in the form of cap lamps. This proposal 

removed the potentially dangerous condition and provided shower facilities which were adequate. The State mine inspector stated that he could 

see nothing wrong with the proposed temporary lighting. The refusal of 

the B shift employees to work under these circumstances became at that 

point unreasonable and therefore was not protected by the Act. See 

Secretary/Bennett v. Kaiser Aluminum and Chemical Corporation, 3 FMSHRC 

1539 (1981). The electricity had been removed from the fluorescent 

lights and the water heater was being repaired at the time the C shift 

employees refused to go into the mine. Both the State and Federal 

inspectors had indicated that the condition was no longer a hazard. I 

conclude that the refusal of the miners on the C shift to go to work 

was unreasonable and not protected under the Act. 

3. The failure of Respondent to pay Applicants for the time they 

did not work on February 12 and 13, 1981, was not a violation of section 

105(c)(l) of the Act. 

893 
ORDER 

Based on the above findings of fact and conclusions of law IT IS 

ORDERED that this proceeding is DISMISSED. 

~'[,LJ§ .k&v~.f/~(_~ James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Depa~tment of Labor, 

230 South Dearborn, 8th Floor, Chicago, IL 60604 

Thomas R. Gallagher, Esq., Peabody Coal Company, P.O. Box 235, 

St. Louis, MO 63166 

894 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAY 11 \982 

VICTOR McCOY, 

Complainant 

Complaint of Discharge, 

Discrimination, or Interference 

v. 

CRESCENT COAL COMPANY, 

CRESCENT INDUSTRIES, 

INTERNATIONAL MINERALS AND 

CHEMICALS CORPORATION (IMC), 

Respondents 

Docket No. PIKE 77-71 

ORDER APPROVING SETTLEMENT AGREEMENT 

On September 28, 1981, I issued a decision in this proceeding in 

which I found that Complainant was discharged by Respondent on 

April 22, 1977, in violation of section llO(b) of the Coal Hine Safety 

Act of 1969. I ordered that Respondent Crescent Coal Company offer 

Complainant reinstatement in the position from which he was discharged; 

that Respondent pay him back pay with interest thereon from the date of 

discharge until he is offered reinstatement; and that Respondent 

Crescent pay a reasonable attorney's fee for services rendered by 

counsel for Complainant. 

Pursuant to notice, a hearing was called on May 4, 1982, in 

Pikeville, Kentucky, for the purpose of receiving evidence on the issues 

of the amount of Complainant's entitlement to back pay and attorneys 

fees. 

After the commencement of the hearing, the parties agreed to 

settle Complainant's claims and stated their agreement on the record 

as follows: 

1. Respondents agree not to seek review of my 

decision of September 28, 1981, on the merits of the 

Complainant. 

2. Reinstatement will not be provided or offered 

Complainant. 

3. Respondents shall pay to Complainant Victor McCoy 

the sum of $55,000 in full settlement of his claim for 

back wages and interest resulting from his discharge on 

April 22, 1977. 

895 
4. Respondents shall pay to Complainant and his 

attorneys the sum of $45,000 in full settlement of their 

claim for reimbursement of attorneys fees and expenses of 

li~igation in this proceeding. 

5. The rights of Respondents among themselves as to 

the amounts due hereunder are not determined by this order. 

The agreement was explained to Complainant on the.record and he 

expressed his understanding of it, and his agreement to its terms. 

Having duly considered the matter, I conclude that the agreement is in 

the best interest of Complainant and serves the purposes of the Act. 

Therefore, IT IS ORDERED that the settlement agreement is APPROVED. 

IT IS FURTHER ORDERED 

1. that Complainant has no right to reinstatement, under 

paragraph 1 of my order of September 28, 1981, or otherwise. 

2. Within 40 days of the date of this order, Respondent shall pay 

the sum of $55,000 to Complainant as back wages and interest due under 

paragraph 2 of my order of September 28, 1981. 

3. Within 40 days of the date of this order, Respondent shall pay 

the sum of $45,000 to Complainant and his attorneys as attorneys fees 

and expenses due under paragraph 3 of my order of September. 28, 1981. 

4. Upon payments of the amounts recited in paragraphs numbered 

2 and 1 above, Complainant will have no further claim under the Coal 

Mine Safety Act of 1969 against Respondents arising out of his discharge 

on April 22,· 1977. 

5. The rights of Respondents as among themselves are not 

determined by this order. 

1tf/VJ1L-5 fl43 a-'ck-vz e/C, ~ James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

Stephen A. Sanders, Esq., Appalachian Research & Defense Fund of 

Kentucky,_JI!_c., 205 Front Street, Prestonsburg, KY 41653 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of Kentucky, 

Inc., 104 Morgan Street, P.O. Box 360, Hazard, KY 41701 

David C. Stratton, Esq., Stratton, May and Hays, P.O. Drawer 851, 

Pikeville, KY 41501 

Dan Jack Combs, Esq., Combs and Lester, P.S.C., 207 Caroline Avenue, 

Pikeville, KY 41501 

896 
FEDERAL MINE SAF~TY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

F & F MENDISCO MINING COMPANY, 

Respondent. 

) 

) 

) CIVIL PENALTY PROCEEDING 

) 

) DOCKET NO. WEST 80-458-M 

) 

) MSHA Case No. 42-00472-05006 F 

) 

) Mine: Rim Columbus 

) 

) 

~~~~~~~~~~~~~~~~> 

Appearances: 

James H. Barkley, Esq., and 

Katherine Vigil, Esq. 

Office of Henry C. Mahlman, R~gional Solicitor 

United States Department of Labor, Denver, Colorado 

For the Petitioner 

Gary Cowan, Esq. 

Grand Junction, Colorado 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Federal Mine Safety and 

Health Administration, (MSHA), charges respondent, F & F Mendisco Company, 

(Mendisco)i with violating Title 30, Code of Federal Regulations, Section 

57.12-13, _/ a safety regulation adopted under the Federal Mine Safety 

and Health Act, 30 U.S.C. 801 ~~· 

1/ 57.12-13 Mandatory. Permanent splices and repairs made in power 

cables, including the ground conductor where provided, shall be: (a) 

Mechanically strong with electrical conductivity as near as possible to 

that of the original; (b) Insulated to a degree at least equal to that of 

the original, and sealed to exclude moisture; and, (c) Provided with damage 

protection as near as possible to that of the original, including good 

bonding to the outer jacket. 

897 
After notice to the parties P hearing on the merits was held in Grand 

Junction, Colorado on August 18, 1981. 

ISSUES 

The threshold issue is whether respondent, as the lessee mine 

operator, can prevail on the defense that he was an independent contractor in relation to the owner of the property. 1:/ 

Additional issues are whether respondent violated the regulation, and, 

if so, what penalty is appropriate. 

SUMMARY OF THE EVIDENCE 

Jackie Lewis Garrison, in his 19th year, died on the third day of 

employment with the Mendisco Company (Tr. 47, 50, 51, P16). On the fateful 

day Garrison was working alone as the grizzly man at the bottom of a two 

compartment shaft (Tr. 8, 47, 48). The electrocution occurred on the 

landing in the sump of the mine. A cable carrying 460 volts supplied power 

to the pump (Tr. 8). 

The inspection took place on the day of the fatality. The MSHA 

inspector observed a bad splice with an exposed lead just below the tie 

down wire (Tr. 10, 12). There was water on the splice and very little 

insulation (Tr. 20, 21). If a·person contacted the hot lead he would be 

exposed to 220 volts (Tr. 24). Drawings, photographs of the area, and the 

defective splice were received in evidence (Exhibits P2-P14). 

MSHA witness Craig Miller, an electrical engineer, testified in 

detail. He dissected the bad splice and concluded that a person could be 

electrocuted if.he contacted .the energized wire (Tr. 68, 69). The wires in 

the splice were corroded and merely twisted together in a knot (Tr. 72). 

After visiting the site witness Miller determined that Garrison was 

electrocuted in this fashion: when he climbed down into the sump he leaned 

against the ladder and with the wire rope from the tugger motor wrapped 

around his left wrist he was exposed to the conductor. The wire rope would 

have ridden down the cable to the bad splice (Tr. 79-80, 91, 98). 

!:./ In Cathedral Bluffs Shale Oil Company, WEST 81-186-M, an unrelated 

case decided this date, the mine owner, retaining project control by 

contract, defends on the basis that the liability lies with its independent 

contractor. 

898 
John Renowden, an MSHA electrical inspector, as well as a journeyman 

electrician, inspected the site. He tested all of the electrical systems 

related to the pump motor. Renowden also concluded that the tugger cable 

came in contact with the bad splice (Tr. 110-111). 

Respondent Mendisco leases this mine from Atlas MineTals (Atlas) (Tr. 

28, 30, 37, 47). Mendisco does the mining and Atlas has agreed to install 

and maintain the electrical system (Tr. 130, 131, 134, 147, 148, R3). 

If Mendisco had an electrical problem they would contact Atlas to 

remedy it. MSHA found no evidence that Mendisco knew of the bad splice 

(Tr. 41, 49). 

DISCUSSION 

Mendisco asserts, as a threshold matter, that it is not responsible 

for the defective wiring. The defense pivots on the basis that Mendisco is 

an independent contractor as to Atlas. It further relies on its agreement 

with Atlas and argues that Atlas and not Mendisco should have been cited. 

Mendisco further relies on the Secretary's guidelines relating to 

independent contractors. 

The independent contractor cases arise in the Conunission decision of 

Republic.Steel Corporation, 1 FMSHRC S, and its progeny. Generally such 

cases arise when the Secretary seeks to impose a penalty on a mine operator 

for an act performed by the operator's independent contractor. Cf U.S. 

Steel Corporation, 4 FMSHRC 163, (February 1982). 

Mendisco's reliance on the doctrine is misplaced. In this factual 

setting Mendisco was the mine operator. It did the mining, its employees 

were exposed and it could have eliminated the hazard. In these circumstances Mendisco's legal relationship with Atlas is not relevant nor is 

it a defense. 

The recent Conunission decision of Phillips Uranium Corporation, CENT 

79-281-M (April 27, 1982) is not applicable here. The Phillips doctrine is 

limited by two factors. These are, first, the owner is not in violation of 

the Act where he has retained an independent company with experience and 

expertise in the activity beirig undertaken, and, two, where the employees 

of the owner do not perform any work other than to observe the progress of 

the work to assure compliance with quality control and contract specifications (slip op. 1, 2). 

Mendisco further contends that the electrocution could not have 

occurred as outlined by MSHA's evidence. This contention rests in part on 

Felix Mendisco's testimony concerning the positioning of the wire tugger 

cable and a likelihood that the cable could not contact the defective 

splice. I am not persuaded. At the time of the accident MSHA experts 

899 
considered several theories of how the electrocution occurred. However, at 

trial, both experts concurred in their views. Their expertise is apparent, 

one is an electrical engineer and the other a journeyman electrician. I 

find the electrocution occurred in the same fashion as contended by the 

MSHA experts. 

CIVIL PENALTY 

Section llO(i) of the Act [30 U.S.C. 820(i)] provides as follows: 

The Commission shall have authority to assess all civil penalties 

provided in this Act. In assessing civil monetary penalties, the 

Commission shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the size of the business of the 

operator charged, whether the operator was negligent, the effect on the 

operator's ability to continue in business, the gravity of the violation, 

and the demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. 

The Secretary proposes a civil penalty of $4,000 for this violation. 

In reviewing the statutory criteria I note that the facts favorable to 

Mendisco include the lack of any prior violations and the company's small 

size (Tr. 48, 126). The negligence and gravity are apparent. I hesitate 

to assess the proposed penalty since it appears that a $4,000 penalty would 

be unduly burdensome on the company. On the other hand, the purposes of 

the Act require a substantial penalty to alert at least this company that 

the safety and health of miners must have a high priority in the Company's 

activities. In sum, and in view of the statutory criteria, I conclude that 

a penalty of $1,000 is appropriate. 

Based on the foregoing findings of fact and conclusions of law I enter 

the following 

ORDER 

1. Citation 336665 is affirmed. 

2. A penalty of $1,000 is assessed. 

3. Respondent is ordered to pay said sum within 40 days of the date 

of this order. 

Law Judge 

900 
Distribution: 

James H. Barkley, Esq. 

Katherine Vigil~ .sq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Build~ng 

1961 Stout Street 

Denver, Colorado ~0294 

Gary Cowan, Esq. 

P.O. Box 2540 

Grand Junction, Colorado 81S02 

901 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

CATHEDRAL BLUFFS SHALE OIL COMPANY, 

Respondent, 

Appearances: 

James H. Barkley, Esq., and 

Katherine Vigil, Esq. 

MA'< i 2 \98? 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 81-186-M 

A/C No. 05-03140-05005 

Mine: Cathedral Bluffs Shale 

Office of Henry C. Mahlman, Regional Solicitor 

United States Department of Labor 

Denver, Colorado 80294 

For the Petitioner 

James M. Day, Esq. 

Cotten, Day and Doyle 

Washington, D.C. 20036 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Federal Mine Safety and 

Health Administration, (MSHA), charges respondent, Cathedral Bluffs Shale 

Oil Company, (Cathedral), with violating Title 30, Code of Federal 

Regulations, Section 37.19-100, 1../ a safety regulation adopted under 

the Federal Mine Safety and Health Act, 30 u.s.c. 801 ~~· 

1/ The cited regulation provides as follows: 30 CFR 57.19-100: 

57.19-100 Mandatory. Shaft landings shall be equipped with substantial 

safety gates so constructed that materials will not go through or under 

them; gates shall be closed except when loading or unloading shaft 

conveyances. 

902 
After notice to the parties a hearing on the merits was held in Grand 

Junction,- Colorado on August 17, 1981. 

ISSUE 

The issue is whether MSHA may impose liability on an owner-operator 

where such owner has retained an independent company with experience and 

expertise in sinking shafts and where- the owner 1 s exposed employees are 

quality control and safety inspectors. :l:.f 

SUMMARY OF THE EVIDENCE 

On the date of this inspection there was a chain but no safety gate at 

level 1050. The shaft bottom was one hundred feet below this station (Tr. 

41). If miners were in the shaft they could be struck by falling ~bjects 

( Tr • 7 , 8 , 41 ) • 

Occidental Shale Oil Company (Occidental), as the owner-operator 

contracted with the Gilbert Corporation of Delaware (Gilbert) (Tr. 11, 12, 

Rl). Gilbert was to serve as the contractor in sinking shafts at the 

Cathedral Bluffs Shale Oil pro'ject (Tr. 20, Rl). Portions of the contract 

received in evidence indicates considerable reliance by Occidental on the 

expertise of Gilbert (Rl). 

On September 4, 1980,_MSHA inspector Michael Dennehy issued Citation 

327786 against the operator and the contractor. 1/ The citation was 

against the operator, Occidental, because they engineered the shaft and had 

quality control men checking on its completion (Tr. 20). However, the 

inspector conceded that he had never seen any Occidental employees other 

than quality inspectors 4/ working in the shaft (Tr. 17). Gilbert, the 

contractor, had a continuing presence on the project and its workers were 

exposed to the hazard (Tr. 19, 31). 

According to the contract Gilbert, who is designated as an independent 

contractor, (Rl, page 1) agrees to comply with all applicable laws, rules, 

and regulations (Rl, page 15). 

2/ In F & F Mendisco, WEST 80-458-M, an unrelated case decided this date, 

a mine operator whose employees were exposed defended on the basis that his 

legal relationship to the owner was that of an independent contractor. 

3/ The record does not reflect what disposition was made of the citation 

against contractor Gilbert. 

4/ The inspector also testified that Occidental safety inspectors were 

working in the shaft. However, except for the incidental activities of 

Occidental safety inspectors Parker and Mcclung, infra, I find the only 

Occidental shaft workers were those individuals inspecting the quality of 

the workmanship (Tr. 62). 

903 
Witness Chuck Inman, the Occidental surface safety inspector, 

testified that Gilbert was in charge of safety and that he did not have 

the right to enter the shaft alone (Tr. 43, 44). 

Witness Don Mcclung, Occidental's safety and health manager, indicated 

he had no control over safety and health in this particular shaft other 

than by contract (Tr. 56, 60). Any hazards observed by Occidental 

employees should be reported to Gilbert. The hazard would either be fixed 

or Gilbert would lose .its contract (Tr. 50). 

DISCUSSION 

The recent Commission decision of Phillips Uranium Corporation, CENT 

79-.281-M (April 27, 1982), is dispositive of this case. The Commission 

holds that liability for a violation may not be imposed ag.ainst an owneroperator .where the owner has retained an independent company with 

experience and expertise in the activity being undertaken and where the 

owner's· exposed employees do not perform any other work other than to 

observe the progress of the contractor's activities to assure compliance 

with quality control and contract specifications,(slip op. 1, 2). I 

further note that Gilbert in this case was sinking mine shafts. This is 

the same specialized activity undertaken by the contractor in Phillips. 

Petitioner in his post trial brief contends that Occidental is liable 

because its employees were exposed to the hazard and it had the authority 

to require abatement. 

Concerning the Occidental employees exposed to the hazard: the 

evidence at best shows the only Occidental employees possibly exposed were 

checking quality control in the shaft. I agree that in January 1980 Ron 

Parker, an Occidental safety inspector, took underground gas samples and I 

further agree that Don Mcclung, the Occidental Safety and Health manager, 

had been down the shaft two or three times (Tr. 47-49). However, in my 

view, such activities fall within the the doctrine expressed in Phillips. 

Petitioner further argues that one hundred Occidental employees were 

exposed. However, the evidence does not stretch as far as petitioner 

contends. There may be one hundred Occidental employees at the Occidental 

site but except as indicated above no witness places any such employees in 

the shaft (Tr. 67-68). 

I agree with petitioner's contention that Occidental had a right to 

abate the hazard. Such a right was by contract. 

On the authority of Phillips, I conclude that the citation issued here 

should be vacated. 

904 
On the foregoing findings of fact and conclusions of law I enter the 

following: 

ORDER 

Citation 327786 and all proposed penalties therefor are VACATED. 

Distribution: 

James H. Barkley, Esq. 

Katherine Vigil, Esq. 

Office'of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

James M. Day, Esq. 

Cotten, Day & Doyle 

1899 L Street, N.W., Twelfth Floor 

Washington, D. C. 20036 

905 

Law Judge 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 t1AY 141982 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. LAKE 81-185-M 

A.C. No. 21-00820-05027 

v. 

Minntac Plant 

UNITED STATES STEEL CORPORATION, 

Respondent 

LOCAL UNION 1938, DISTRICT 33, 

UNITED STEELWOHKERS OF AMERICA, 

Representative of the Miners 

Appearances: 

Before: 

DECISION 

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

Department of Labor, Arlington, Virginia, for Petitioner; 

Louise Q. Symons, Esq., United States Steel Corporation, 

Pittsburgh, Pennsylvania, for Respondent; 

Clifford Kasenan, Safety Chairman, Local 1938, United 

Steelworkers of America, Virginia, ~1innesota, for 

Representative of the Miners. 

Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

In this proceeding, the Secretary seeks a penalty for the violation 

of 30 C.F.R. § 55.14-29 which proscribes repairs or maintenance on 

machinery until the power is off and the machinery is blocked against 

motion. Pursuant to notice the case was heard in Duluth, Minnesota on 

March 23, 1982. Federal mine inspector Thomas Hasley, and Michael 

Tintor testified on behalf of Petitioner. Richard Maki, Rod Robillard 

and Ronald Ranalta testified on behalf of Respondent. No witnesses were 

called by the Representative of the Miners. Petitioner and Respondent 

have filed posthearing briefs. Based on the entire record and consider~ 

ing the contentions of the parties, I make the following decision: 

906 
FINDINGS OF FACT 

1. At all times pertinent to this proceeding, Respondent was the 

operator of the Minntac Plant, a mine as defined in the Federal Mine 

Safety and Health Act of 1977. The subject plant produces g~ods which 

enter interstate commerce. 

2. Re~pondent is a large operator and the assessment of a penalty 

will not affect its ability to continue in business. 

3. A total of 180 violations were assessed against the subject 

mine within the 24 months prior to the violat'ion charged herein, of 

which 170 have been paid. 

4. Respondent demonstrated good faith abatement after the issuance 

of the citation involved in this proceeding. 

5. On April 14, 1981, three laborers in the fines crusher building of the Minntac Plant were engaged in shovelling material that had 

dropped to the floor from a conveyor belt. The material was shovelled 

into a wheelbarrow and dumped away from the beltline. 

6. The belt was moving while the laborers were shovelling. There 

was approximately 18 inches of material buildup under the belt, and the 

laborers were shovelling under the belt. 

7. There were two bars in front of the belt designed to prevent 

workers from walking into or falling into the belt or rollers. The 

material buildup under the belt was approximately the height of the 

lower bar. 

8. It was possible to put a shovel between the bars to break up 

the material under the belt. It would be difficult to remove the 

material in this way. 

9. A pinch point existed between the belt and the pulley, and 

could have been reached if a long handled shovel was inserted between 

the two bars. 

10. Inspector Wasley issued a citation alleging a violation of 

30 C.F.R. § 55.14-29. He contended that shovelling material from under 

the belt constituted maintenance of the beltline. 

11. The citation was terminated when Respondent had the employees 

removed from the area and instructed in the hazard involved. 

12. The shovels being used were long handled shovels without a 

hand grip and were approximately 4-1/2 to 5 feet long. 

907 
13. Respondent has a safety rule requiring that a minimum of 

18 inches body clearance must be maintained when working near a moving 

conveyor. 

REGULATION 

30 C.F.R. § 55.14-29 provides: "Repairs or maintenance shall not 

be performed on machinery until the power is off and the machinery is 

blocked against motion, except where machinery motion is necessary to 

make adjustments." 

ISSUES 

1. Whether shovelling material from under a belt line constitutes 

repairs or maintenance on machinery? 

2. If a violation of the mandatory standard was established, what 

is the appropriate penalty? 

CONCLUSIONS OF LAW 

1. Respondent is subject to the provisions of the Federal Mine 

Safety and Health Act of 1977 in its operation of the Minntac Plant. 

2. The undersigned Administrative Law Judge has jurisdiction over 

the parties and subject matter of this proceeding. 

3. Shovelling spilled material from under a belt does not constitute repairs or maintenance on machinery. 

DISCUSSION 

The wording of the mandatory standard is clear - plainer than 

many such standards - it forbids performing repairs or maintenance on 

moving machinery except where motion is necessary to make adjustments. 

It cannot reasonably be stretched to forbid cleanup under a belt which 

may expose a worker to a pinch point. The fact that the inspector 

stated that he would accept a guard as an abatement of the violation 

makes it apparent that he was confusing the standard for which 

Respondent was cited with another standard requiring guarding of moving 

machinery parts which might be contacted by persons. There is no 

provision in the cited standard which would permit repairs or maintenance on moving machinery if a guard is provided. In any event, it 

appears clear to me that the activity described in the subject citation, 

whatever hazard might have been involved, did not constitute repairs or 

maintenance on moving machinery. 

908 
ORDER 

Based on the above findings of fact and conclusions of law, IT IS 

ORDERED that the citation is VACATED and this proceeding is DISMISSED. 

fc~ #Jvociu--z~£ ~ James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Louise Q. Symons, Esq., Attorney for United States Steel Corporation, 

600 Grant Street, Room 1580, Pittsburgh, PA 15230 

Clifford Kasenen, Safety Chairman, Local Union 1938, United Steelworkers 

of America, 307 First Street North, Virginia, HN 55702 

909 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 """ 1 4 \982 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CAROLINA STALITE COMPANY, 

Respondent 

Civil Penalty Proceedings 

Docket Nos. SE 80-21-M 

SE 80-61-M 

SE 80-73-M 

SE 80-79-M 

SE 81-6-M 

Stalite Mill 

DECISION AND ORDER GRANTING RESPONDENT'S 

MOTION FOR SUMMARY DECISION 

In view of the Solicitor's frequent failure to respond to critical 

motions, on May 4, 1982, I issued a written order requiring the Secretary 

to "fully respond" to Respondent's Motion for Sunnnary Decision. Petitioner's response merely urged that an extension be granted pending its 

appeal of the dispositive decision of the Connni~sion to the United States 

Court of Appeals. 

By its decision dated March 29, 1982, the Commission determined that 

the Respondent was not a mine subject to the Federal Mine Safety and · 

Health Act of 1977. Secretary v. Carolina Stalite Company, 4 MSHRC 423 

(1982). Accordingly, Respondent's motion is granted and the five subject 

penalty proceedings are dismissed. 

A/,. / ~~,_e a:?~t/2 - Michael A. Lasher, Jr., Judge 

Distribution: 

James H. Woodson, Deputy Regional Solicitor; Ken S. Welsch, Esq., 

Office of the Solicitor, U. S. Department of Labor, 1371 Peachtree 

St., NE, Rm. 339, Atlanta, 'GA 30367 (Certified Mail) 

William C. Kluttz, Jr., Esq., Kluttz, Hamlin, Reamer, Blankenship 

& Kluttz, 131 N. Main St., P. O. Drawer 1617, Salisbury, NC 28144 

(Certified Mail) 

910 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CLAY KITTANNING COAL CO., 

Respondent 

Civil Penalty Proceedings 

Docket No. WEVA 81-397 

A/O No. 46-05653-03009 

Docket No. WEVA 81-433 

A/O No. 46-05653-03010V 

Gail Mine 

DECISION AND ORDER 

These matters came on for an evidentiary hearing that, with the 

consent of the parties, was converted to a settlement conference in 

Beckley, West Virginia on April 21, 1982. 

The operator, who appeared pro se, initially took the position that 

he was not responsible for the violations charged because he was the 

lessee of the mineral rights and had contracted with a third party to 

extract the coal. There was no dispute about the fact that the contract 

miner, who had never been identified as the operator, had connnitted the 

violations. Nor was there any dispute about the fact that Mr. Ray, the 

lessee-operator, had worked closely with his contract miner. Mr. Ray 

was understandably chagrined over his claim that.he was being held 

monetarily responsible for violations committed by a contract miner and 

that the contractor had never paid the royalty due under the contract. 

On the other hand, Mr. Ray conceded he was responsible for employing the 

contractor and that the contractor was not a safe operator. 

I told Mr. Ray that under the statute as both originally written 

and amended a lessee-operator is vicariously liable for violations 

committed by his contractors. Mitigating circumstances may be shown by 

such operators but under the circumstances presented I could see no 

basis for diminishing Mr. Ray's responsibility. ±./ 

1/ In its decision of April 27, 1982 in the Phillips Uranium case the 

Commission held that the Secretary's refusal to proceed against a 

construction contractor either directly or by impleading the independent 

contractor was an abuse of prosecutorial discretion that required the 

sanction of dismissal of the charges against the owner-operator. The 

Commission was obviously displeased with the rigidity in the solicitor's 

litigating posture. I do not believe the Commission intended to hold 

that owner-operators or lessee-operators are no longer jointly and 

severally liable for violations committed by their contractors. 

911 
Mr. Ray also asserted an inability to pay the penalties because of 

straitened financial circumstances. It developed, however, that these 

circumstances.are expected to improve considerably over the next year. 

On the basis of these considerations, Mr.Ray and the solicitor negotiated 

a stipulation for settlement which is the basis for the present motions. 

Based on an independent evaluation and de novo review of the 

circumstances, I find the settlement proposed is in accord with the 

purposes and policy of the Act. 

Accordingly, it is ORDERED that the motions to approve settlement 

be, and hereby are, APPROVED. It is FURTHER ORDERED that the operator 

pay the amount of the settlement agreed upon, $3,570, on or before 

April 30, 1983 and that subject to payment the captioned matters be 

DISMISSED. 

Distribution: 

William A. Ray, President, Clay Kittanning Coal Co., Inc., Box 296, 

Summersville, WV 26651 (Certified Mail) 

David Street, Esq., Office of the Solicitor, U.S. Department of Labor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

912 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

IMY 181982 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH· 

ADMIHISTRATION (MSHA), 

Petitioner 

v. 

UiHTED STATES STEEL CORPORATION, 

Respondent 

UNITED STATES STEEL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADHINISTRATION (MSHA), 

Respondent 

LOCAL UNION NO. 1938, DISTRICT 33, 

UiUTED STEELWORKERS OF AMERICA, 

Representative of the Miners 

Docket No. LAJ(E 82-36-M 

A.O. No. 21-00282-05029 

Minntac Mine 

Contest of Citation 

Docket No. LAKE 81-191-RM 

Citation No. 486750; 7/30/81 

Hinntac Hine 

DECISION 

Appearances: 

Before: 

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

Department of Labor, Arlington, Virginia, on behalf of 

the Secretary of Labor; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, on 

behalf of United States Steel Corporation; 

Clifford Kasenan, Safety Chairman, Local Union 1938, 

United Steelworkers of America, Virginia, Minnesota, on 

behalf of the Representative of the Hiners. 

Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

The two cases have been consolidated since they both involve the 

same citation. The notice of contest filed by U.S. Steel challenges 

913 
the validity of the cit~tion and the civil penalty proceeding se~ks a 

penalty for the violation charged in ·the citation. Pursuant to notice, 

a hearing was .held on the consolidated cases in Duluth, Minnesota on 

March 23, 1982. Federal mine inspector James Bagley and Larry Claude 

testified on behalf of the Secretary. William Parker and Michael Kerr 

testified on behalf of U.S. Steel. No witnesses were called by the 

Representative of the Miners. The Secretary and U.S. Steel have filed 

posthearing briefs. Based on the entire record and considering the 

contentions of the parties, I make the following decision. 

FINDINGS OF FACT 

1. At all times pertinent to this proceeding, U.S. Steel was the 

operator of the Hinntac Plant, a mine as defined in the Federal Mine 

Safety and Health Act of 1977. The subject plant produces goods which 

enter interstate commerce. 

2. U.S. Steel is a large operator, and the assessment of a 

penalty ·will not affect its ability to continue in business. 

3. A total of 180 vio·lations were assessed against the subject 

mine within the 24 months prior to the violation involved herein, of 

which 170 have been paid. 

4. Respondent demonstrated good faith in abating the condition 

after the issuance of the citation involved in this proceeding. 

5. In July, 1981, and for some time prior to that, it was a com.'lton 

practice at the subject mine for drivers of 85 ton and 120 ton haulage 

trucks to check the oil level while the truck motor was running. 

6. Newly hired truck drivers since 1977 have been instructed by 

U.S. Steel to turn off the truck engine while checking the oil. 

7. On July 30, 1981, the driver of a Wabco truck (No. 528) with 

a Cummins engine checked the oil in his vehicle while the motor was 

running. 

8. In checking the oil, it is necessary to place one's foot on 

the bottom step of a boarding ladder, take a hand hold on a grab iron 

or radiator brace and pull oneself up to the exposed engine. 

9. There was a pinch point between the V-belt on the alternator 

and the alternator pulley located at the front or right hand side o~ the 

alternator from the point of view of the person on the ladder. 

10. The oil dipstick was toward the back or left hand side of the 

ladder. It was approximately 16 inches from the alternator pulley. The 

pinch point was approximately 18 inches from the grab iron. 

914 
11. On July 30, 1981, Inspector Bagley issued a citation for a 

violation of 30 C.F.R. § 55.14-1 in which he charged that the truck in 

question had an alternator V-belt drive assembly which was not guarded 

to prevent persons from contacting it, and the equipment operator stated 

that he checked the engine oil with the engine running. 

12. The citation was terminated when U.S. Steel fabricated and 

installed a guard over the alternator and its V-belt assembly. The 

inspector refused to accept as abatement the 'company's proposal that 

it issue a "job safety procedure" instructing the equipment operators to 

shut down the trucks before checking the engine oil. 

13. The inspector testified at the hearing that mechanics checking 

the timing of the engine might also be exposed to the pinch point. This 

aspect of the alleged hazard was not included in the citation, nor was 

it part of the reason for issuing the citation. I am not considering it 

in this proceeding. 

REGULATION 

30 C.F.R. § 55.14-1 provides as follows: "Gears; sprockets; 

chains; drive, head, tail, and takeup pulleys; flywheels; couplings; 

shafts; sawblades; fan inlets; and similar exposed moving machine parts 

which may be contacted by persons and which may cause injury to persons, 

shall be guarded." 

ISSUES 

1. Whether an unguarded V-belt on the alternator of a truck engine 

constitutes a violation of the standard in question where the truck 

operator checks the engine oil with the engine running? 

2. If so, whether the condition can be abated by requiring that 

the engines be turned off before checking the oil, or whether a guard 

is necessary? 

3. If a violation was established, what is the appropriate 

penalty? 

CONCLUSIONS OF LAW 

1. The U.S. Steel Corporation is subject to the provisions of the 

Federal Mine Safety and Health Act of 1977, in the operation of the 

Hinntac Plant. 

915 
2. The undersigned Administrative Law Judge has jurisdiction over 

the parties and subject matter of this proceeding. 

3. The V-belt assembly on the alternator of the No. 523 Wabco 

truck is, while the engine is running, a moving machine part. If the 

engine oil is checked with the engine running, the V-belt assembly 

constitutes a pinch point which may be contacted by persons. 

DISCUSSION 

There is no real dispute that one checking the oil by the dipstick 

on the truck in question while the engine is running is subjected to 

the possibility of·coming in contact with the pinch point formed between 

the alternator V-belt and the alternator pulley. U.S. Steel argues 

that the risk is remote (it compares it to the risk of being struck by 

a falling meteor); that no other operator has ever been cited for the 

condition; that no injuries have ever been reported due to the condition; 

that the citation resulted from the personal campaign of a U.S. Steel 

employee to have guards installed; that the equipment manufacturers 

never considered the need for a guard; that the inspector was arbitrary 

in requiring the installation of a guard for abatement. (" ••. if MSHA 

inspectors have that right they have succeeded where President Truman 

failed in dictating how the steel companies should run their businesses. 

Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952)"). Brief of 

United States Steel, p. 7). These arguments are largely beside the 

point. A risk of injury from the possible contact with moving machine 

parts was shown by the evidence. 

4. There is no risk of injury from contact with moving machine 

parts in checking the oil with the engine off, since in that case, 

there are no moving machine parts. Therefore, the condition could 

properly have been abated by requiring that the engine oil be checked 

only with the engine turned off. This is the procedure recommended by 

the equipment manufacturers and the stated policy of U.S. Steel. 

5. The probability of an in]ury occurring in the circumstances 

shown was slight. On the other hand, if an in]ury occurred it could be 

relatively serious. I conclude that the violation was not serious. 

6. The company had an official policy of requiring the engines to 

be turned off when checking the oil. For various reasons, the policy 

was more honored in the breach than in the observance. This fact should 

have been known to management personnel. I conclude that U.S. Steel 

was negligent in permitting the practice to continue. 

7. I conclude that an appropriate penalty for the violation is 

$75. 

916 
ORDER 

On the basis of the above findings of fact and conclusions of law, 

IT IS ORDERED that Citation No. 486750 issued July 30, 1981, is AFFIRMED. 

IT IS FURTHER ORDERED that U.S. Steel Corporation, within 30 days of the 

date of this decision, pay the sum of $75 as a civil penalty for the 

violation of 30 C.F.R. § 55.14-1 charged in the citation. 

J

CL-i,ll.C-&' ~vck4 ,z, cj'(_,,-

1 James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Louise Q. Symons, Esq., Attorney for United States Steel Corporation, 

600 Grant Street, Room 1580, Pittsburgh, PA 15230 

Clifford Kasenan~ Safety Chairman, Local Union 1938, United Steelworkers 

of America, 307 First Street North, Virginia, HN 55702 

917 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JACK PARKS, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Applicant 

Complaint of Discharge, 

Discrimination, or Interference 

Docket No. NORT 75-377 

L & M COAL CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

Mary Lu Jordan, Esq., United i·fine Workers of America, 

Washington, D.C., for Applicant; 

No appearance for Respondent. 

A<lministrative Law Judge Broderick 

STATEMENT OF THE CASE 

The case is before me on a motion filed by Applicant for a post 

decision hearing to determine the amount due Applicant as back wages, 

costs and expenses pursuant to the order in my decision of November 9, 

1977. The decision was affirmed by the Commission (2 FMSHRC 2815) and 

the Court of Appeals for the Fourth Circuit (Unpublished Opinion 

October 7, 1981 No. 80-1320). 

A Notice of Hearing was issued March 30, 1982, scheduling a hearing 

in Abingdon, Virginia, for April 29, 1982. On March 30, 1982, counsel 

for Respondent filed a motion to withdraw as counsel because he had 

been appointed to a Judicial position in Virginia. Counsel stated that 

he had advised his client of the motion and suggested that he retain 

other counsel. 

On April 2, 1982, I issued an order granting the motion of counsel 

to withdraw and notifying Respondent of the time and place of the hearing. The notice was sent by certified mail and returned unclaimed 

April 29, 1982. Ou April 27, 1982, I called Respondent's former 

attorney who stated that he sent a copy of the notice of hearing to 

Respondent when he received it, but had not heard from Respondent. On 

918 
April 27, 1982, I attempted to call Respondent's President, W. L. 

Lanningham, at his home (there was no listing for the corporation). 

My Secretary talked to a person who identified herself as his wife and 

asked Mr. Lanningham to call. No call was received. Under the circumstances, I find that Respondent was notified of the hearing. No one 

appeared on his behalf. 

Evidence was received at the hearing and submitted subsequent to 

the hearing by Complainant on the issues of back pay, interest, legal 

expenses and costs of litigation. Based on the evidence submitted and 

on the entire record, I make the following decision on the amounts due 

Complainant: 

BACK PAY 

My order directed Respondent to pay Complainant full back wages 

from the date of discharge (May 9, 1975) to the date he is reinstated 

with interest thereon computed at the rate of 6 percent per annum. 

Respondent was permitted to deduct from the back wages due under the 

order, any wages Complainant received from other employment. 

Complainant is seeking back pay only for the period from ;fay 9, 1975 to 

Dece~ber 5, 1977. 

1. Back pay, including vacation pay, holiday pay, 

unused sick leave pay and cost of living allowances which 

Complainant would have received for the period in question 

totals $37,708.45. Interim earnings total $7,318.69. The 

net back pay due Complainant is $30,389.76. 

2. Interest on the net back pay at the rate of 

6 percent per annum totals $10,756.42. Hy order directed 

that interest be paid at 6 percent although unde~ the 

formula followed by the NLRB and by me in more recent 

decisions, the rate would fluctuate between 6 percent and 

20 percent for the periods involved. I am using the rate 

of 6 percent per annum since my order specified payment of 

interest at 6 percent. 

3. Complainant is entitled to have payments made to 

the United Mine Workers Health and Retirement Fund on his 

behalf as part of back wages. The amount that would have· 

been paid for the period involved is $6,629.12. 

LEGAL EXPENSES 

1. At the time the case was tried Complainant was represented by 

an attorney in private practice who was engaged by the United Mine 

Workers. When the UMW counsel took over the case directly, the ill1W 

919 
paid the private counsel the su~ of $5,329.46. UMW attorneys, based on 

their salaries, health and pension benefits, are entitled additionally 

to a total of $1,820.77. 

2. Complainant had costs in the amount of $61.97 for attendance 

at the hearing in Abingdon. 

ORDER 

Resp.ondent shall within 30 days of the date of this decision pay 

the following amounts pursuant to my order of November 9, 1977: 

1. To Complainant Jack Parks the sum of $41,146.18 

as back wages and interest. 

2. To Complainant Jack Parks and the United Mine 

Workers of America the sum of $7,150.23 as attorneys fees 

and legal expenses. 

3. To the United Mine Workers Health and Retirement 

Fund on behalf of Complainant Jack Parks the sum of 

$6,629.12 as employer contributions to the Pension and 

Benefit Trusts. 

4. To Complainant Jack Parks the sum of $61.97 as 

incidental expenses of litigation. 

IT IS FURTHER ORDERED that upon payment of the above amounts, 

Complainant will not be entitled to reinstatement, nor will he have any 

other claim against Respondent under the Coal Mine Safety Act of 1969, 

resulting from his discharge on May 9, 1975. 

t{/llVU-7~8 ,,4/£-vcf?i;y,,;t_, 

James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

Mary Lu Jord?n, Esq., United Mine Workers of America, 900 15th Street, 

N.W., Washington, DC 20005 

Mr. W. L. Lanningham, Route 4, Box 118, Jonesville, VA 24263 

920 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

UNITED MINE WORKERS 

OF AMERICA, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Respondent 

May 21, 1982 

NOTICE OF CONTEST 

Docket No. LAKE 82-70-R 

Order No. 1226709; 3/15/82 

Saginaw Mine 

ORDER OF DISMISSAL. 

On March 15, 1982, an MSHA inspector fssued a withdrawal order under section 104(d} (1) of the Act citing a 

violation of 30 CFR 75.200. On March 16, 1982, the order 

was terminated. On March 19, 1982, the withdrawal order was 

vacated on the ground that it had been issued in error. 

The Contestant union challenges the vacating of the 

withdrawal order. I conclude Contestant does not have that 

right under the Act. 

Under section 105(d} of the Act a representative of 

miners may contest "the issuance, modification, or termination 

of any order." The Act does not give the representative of 

miners the right to challenge the vacating of an order. The 

term "vacating" is used elsewhere in the Act including a 

subsequent phrase of the same sentence of section 105(d}. 

Congress gave each of the terms "issuance", "modification", 

"termination" and "vacation" its own separate and discrete 

meaning and in dealing with these terms Congress has acted 

with great specificity. If Congress wished the union to 

have the right to challenge the vacating of an order it 

would have expressly so provided as it did with respect to 

other actions that are taken with respect to orders. In 

view of the precise delineations set forth in 105(d} there 

is no basis to expand by implication the rights granted 

therein or to read into it any other part of the Act such as 

921 
104(h). It is clear therefore, that only the designated 

actions regarding orders may be disputed by a miner's 

representative. The preciseness of section 105(d) previously has been recognized in other contexts. United Mine 

Workers of America v. Secretary of Labor' 3 FMSHRC 2016 

(August 28, 1981); Chester M. Jenkins v. Secretary of Labor, 

3 FMSHRC 2175 (September 22, 1981). 

In light of the foregoing, this case is DISMISSED . 

• 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: Certified mail. 

Thomas M. Myers, Esq., UMWA, 56000 Dilles Bottom, Shadyside, 

OH 43947 

John H. O'Donnell, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 

922 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. ' 20006 

UNITED MINE WORKERS 

OF AMERICA, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

May 21, 1982 

NOTICE OF CONTEST 

Docket No. LAKE 82-71-R 

Citation No. 1226715; 3/15/82 

Saginaw Mine 

ORDER OF DISMISSAL 

On March 15, 1982, an MSHA inspector issued a_ citation 

under section 104(a) of the Act citing a violation of 30 CFR 

75.303. On March 19, 1982, the citation was vacated. 

The Contestant union challenges the vacating of the 

citation. I conclude that Contestant does not have that 

right under the Act. 

Under section 105(d) a representative of miners only 

has the right to dispute the "reasonableness of the length 

of time set for abatement by a citation or modification 

thereto." An operator may contest the issuance or modification of a citation and the reasonableness of abatement 

time. No one is given the right to contest the vacating 

of a citation. Section 105(d) is very specific in delineating the types.of actions taken with respect to citations 

and orders that can be challenged and the identity of those 

who can assert these challenges. See my decision in United 

Mine Workers of America v. Secretary of Labo~, LAKE 82-70-R 

of this date which is adopted and incorporated herein. It 

has previously been held that a miner's representative 

cannot challenge the issuance of a citation. United Mine 

Workers of America v. Secretary of Labor (CENT 81-223-R) 

dated August 28, 1981. It also has been held that a miner 

cannot challenge issuance of a citation. Jenkins v. Secretary 

of Labor (WEST 81-348-RM) dated September 22, 1981. The 

923 
rationale of those decisions which is based upon a recognition that the rights conferred by 105(d) are defined and 

delimited py the very explicit language of that section 

applies here. Clearly, with respect to citations a miner's 

representative is limited to an attack upon the reasonableness of abatement time. 

Contestant's reliance upon section 104(h) is unpersuasive. That section is merely declarative of the fact 

that a citation or order remains in effect until it is 

changed or set aside in the ways specified by those authorized to do so. It does not enlarge upon the rights conferred by section 105(d). 

In light of the foregoing, this case is DISMISSED. 

c---~----....\-P-af! Chief Administrative Law Judge 

Distribution: 

Thomas M. Myers, Esq., UMWA, 56000 Dilles Bottom, Shadyside, 

OH 43947 

John H. O'Donnell, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 

924 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OAK MINING COMPANY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ltAY 2 4 \982 

Civil Penalty Proceeding 

Docket No. WEVA 82-5 

A.O. No. 46-04160-03014 V 

Marilyn No. 1 Mine 

DECISION 

Appearances: Aaron Smith, Attorney, U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the petitioner; Robert V. Berthold, Jr., 

Esquire, Hoyer, Sergent & Berthold, Charleston, West Virginia, 

for the respondent 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil penalty 

filed by the petitioner against the respondent pursuant to section llO(a) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(a), charging 

the respondent with three alleged violations of certain mandatory safety 

standards found in Section 75, Title 30, Code of Federal Regulations. 

Respondent filed a timely answer to the proposals, admitted that 

the mine is subject to the provisions of the Act, and in defense of the 

violations stated that the conditions cited were abated within a reasonable 

time, did not constitute an immediate threat to the health and safety 

of miners, and did not constitute a continued pattern of conduct. 

Further, respondent submitted that the initial proposed penalty assessment 

amounts for the violations are inappropriate considering the size of 

the mine, the size of respondent's company, and the number of previously 

assessed violations. 

By notice of hearing, as subsequently amended, the case was docketed 

for hearing on April 28, 1982, in Charleston, West Virginia. Prior to 

the Commencement of the hearing, respondent's counsel of record withdrew from 

the case and also advised that the respondent had filed a Petition for 

reorganization under Chapter II of the United States Bankruptcy Code 

in the U.S. Bankruptcy Court for the Southern District of West Virginia 

at Charleston, West Virginia. 

925 
By motion filed April 1, 1982, respondent's bankruptcy counsel 

filed a motion for a stay of the scheduled hearing on the ground that 

Section 362 Qf the U.S. Bankruptcy Code automatically stays the pending 

adjudicative proceeding before this Commission. The motion for stay was 

denied by me on April 9, 1982, and my reasons for the denial are detailed 

in the order which is a part of the record. The hearing was convened 

as scheduled and the parties appeared and participated fully therein. 

At the request of the parties, an informal prehearing conference 

was held in Charleston on the evening of April 27, 1982, for the purpose 

of discussing the issues to pe tried, the status of respondent's 

bankruptcy petition, and a possible settlement of the case. The parties 

advised me that they had reached a proposed settlement of the case and they 

were afforded an opportunity to present their arguments. in support 

of the settlement on the record at the hearing. 

Discussion 

Citation No. 904194, issued on June 8, 1981, is a Section 104(d)(2) 

Order of withdrawal, cites a violation of 30 CFR 75.303, and the condition 

or practice cited is as follows: 

There were no evidence that a preshift examination 

had been made before miners entered the 002 Section, 

in that initials, date or time could be found at 

or near the face areas. 

Citation No. 904293, issued on June 19, 1981, is a Section 104(d)(2) 

Order of Withdrawal cites a violation of 30 CFR 75.400, and the cited 

condition or practice is as follows: 

Loose coal and coal dust, in depths from 1 to 18 

inches, was allowed to accumulate on the mine 

floor and coal ribs in the following entries in 

the No. 1 (001) section: From the face of No. 1 

entry outby 60 feet the face of No. 2 entry outby 

50 feet, the face of the No. 3 entry outby 74 feet, 

the hold of No. 4 entry outby 98 feet, the face of 

No. 5 entry outby 85 feet and the face of No. 6 

entry outby for 59 feet. 

Citation No. 904294, issued on June 19, 1981, Section 104(d)(2) 

Order of Withdrawal, cites a violation of 30 CFR 75.316, and the cited 

condition or practice is as follows: 

Permanent stoppings were not maintained up to and 

including the third connecting crosscut in the 

No. 1 (001) section in that permanent stoppings 

were terminated 4 crosscuts outby the faces of 

the No. 2 and 3 (intake) faces and No. 4 and 5 

(Return) face. 

926 
Stipulations 

The parties stipulated that the respondent owned and operated the 

subject mine, that the mine is subject to the Act, that the citations 

were duly served on responden~s agents at the times and dates stated 

therein, and that I have jurisdiction to hear and decide the matter. 

Respondent's bankruptcy petition 

As noted in my April 9, 1982, Order denying respondent's motion for 

stay, Section 362 of the Bankruptcy Code, 11 U.S.C. 362, contains 

'exceptions to the automatic stay provisions of the law, and one of those 

exceptions reads as follows: 

(b) The filing of a petition under section 301, 

302, or 303 of this title does not operate 

as a stay - * * * 

(4) Under subsections (a)(l) of this section, 

of the commencement or continuation of an 

action or proceeding by a governmental unit 

to enforce such governmenta.l units police 

or regulatory power; (5) under subsection 

(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 

units police or regulatory power; 

N.L.R.B. v. Evans Plumbing Company, 639 F.2d 291 (5th Cir. 1981), 

contains a detailed discussion of the section 362 bankruptcy code stay 

exception, particularly in cases involving a Federal agency's exercise 

of regulatory powers, including the enforcement of safety regulations. 

See also: In re Tauscher, et al., E.D. Wisc. Bankruptcy Court, 24 WR cases 

1310, holding that administrative proceedings involving the assessment 

of civil penalties for child labor violations of the Fair Labor Standards 

Act are excepted from the automatic stay provisions of section 362 

of the Bankruptcy code. 

In an·April 6, 1982, decision concerning a discrimination complaint 

filed by the Secretary pursuant to section 105(c) of the Federal Mine 

Safety and Health Act of 1977, MSHA, et al. v. Leon's Coal Company, et al., 

Docket No. CENT 80-339-D, Judge Melick ruled that enforcement proceedings 

before this Commission brought by MSHA pursuant to the Act come within 

the aforementioned statutory exception to the automatic stay provisions 

of the Bankruptcy Code. Citing several applicable court decisions in 

addition to those cited above, Judge Melick further held that in spite 

of the pending bankruptcy proceeding in the case before him, this 

Commission retained jurisdiction to proceed with hearings in pending 

cases and to issue decisions and orders. 

927 
I am in total agreement with the Leon Coal Company decision and 

adopt Judge Melick's rulings regarding the Commission's jurisdiction to 

proceed with the final adjudication of cases involving coal mining 

companies who are parties in proceedings before the Commission or its 

administrative Law Judges as my finding and conclusion on this issue. 

I also reaffirm my previous ruling and order denying respondent's motion 

for a stay of this adjudicative proceeding. 

Petitioner's counsel presented full and complete arguments in 

support of the proposed settlement disposition of this case, including 

information ~oncerning the six criteria found in section llO(i) of the 

Act. 

Fact of violations 

Respondent does not dispute the fact of violations and presented 

no defense to the citations. Under the circumstances the citations in 

question are AFFIRMED. 

Size of business and the effect of the civil penalty assessments on 

the respondent'~ ability to remain in business. 

The parties agreed that the respondent is a moderate-to-medium 

sized coal mine operator that all of the mines owned and operated 

by the parent company, Coal Management Services Incorporated, had an annual 

production of 1,088,959 tons of coal, and that the subject mine had an 

annual production of 272,321 tons. 

The parties stipulated that the initial proposed civil penalty 

assessments for the three citations in question would have an adverse 

impact on t~e respondent's ability to continue in business, particularly 

in light of the pending bankruptcy proceedings. Although the mine is 

not presently in operation, respondent's counsel indicated that respondent 

is attempting to resolve its financial affairs and will attempt to reopen 

the mine sometime in the future. Counsel also asserted that the approval 

of the proposed settlement will contribute to the respondent's efforts 

to remain solvent and get back into the coal mining business. 

History of prior citations 

The parties stipulated that for the 24-month period prior to the 

issuance of the citations in question the respondent paid civil penalty 

assessments for a total of 37 violations. 

Gravity 

Petitioner argued that all the citations were moderately serious. 

The failure to conduct the required preshift examination (citation 904194), 

exposed miners to potential hazards. The failure to clean-up the cited 

coal accumulations (904293), presented a fire hazard. The failure to 

maintain the permanent stoppings could have affected the mine ventilation 

system. 

928 
Negligence 

The parties agreed that the citations resulted from the respondent's 

failure to exer.cise reasonable care and that this constitutes ordinary 

negligence as to each of the citations. Although recognizing that 

the citations were "unwarrantable failure" orders, petitioner's counsel 

agreed that there is no evidence of any gross negligence by the respondent 

in this case. 

Good faith compliance 

Petitioner stated that citation no. 904194 was abated within 20 

minutes after it was issued, and that the conditions cited in the remaining 

citations were promptly corrected by the respondent and that the inspector 

terminated the citations upon his next visit to the mine. 

The parties proposed that a civil penalty assessment for the three. 

citations in question in the total amount of $1,000 is reasonable and 

in the public interest, particularly in light of the pending bankruptcy 

proceedings. 

Conclusion 

After careful review and consideration of the pleadings, arguments, 

and submissions in support of the petitioner's motion to approve the 

proposed settlement of this case, I conclude and find that the proposed 

settlement disposition is reasonable and in the public interest. Accordingly, 

pursuant to 20 C.F.R. § 2700.30, petitioner's motion is r,RANTED and the 

settlement is APPROVED. 

The agreed upon penalty assessment of $1,000 is allocated as follows: 

Citation No. Date 30 CFR Section Assessment 

904194 6/8/81 75.303 $300 

904293 6/19/81 75.400 $400 

904294 6/19/81 75.316 $300 

ORDER 

Respondent IS ORDERED to pay civil penalties in the settlement amounts 

shown above in satisfaction of the citations in question within thirty (30) . 

days of the date of this decision and order, and upon receipt of payment by 

the petitioner, this proceeding is DISMISSED. 

~:f!f~e J/1::4,; 7,.rKoutras 

v: /-("F)''f.. L;:,_z:C~"J "' • · 

Administrative Law Judge 

929 
Distribution: 

Aaron Smith,, Attorney, U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Robert V. Berthold, Jr., Esq., Hoyer, Sergent & Berthold,- 22 Capital St., 

Charleston, WV 25301 (Certified Mail) 

930 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 26, 1982 

QUARTO MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

QUARTO.MINING COMPANY, 

Respondent 

DECISION 

Contest of Orders 

Docket No. LAKE 81-118-R 

Order No. 1121181; 3/2/81 

Docket No. LAKE 81-119-R 

Order No. 1121182; 3/2/81 

Docket No. LAKE 81-120-R 

Order No. 1121183; 3/2/81 

Docket No. LAKE 81-121-R 

Order No. 1121185; 3/2/81 

Docket No. LAKE 81-122-R 

Order No. 1124038; 3/2/81 

Docket No. LAKE 81-123-R 

Order No. 1124039; 3/2/81 

: 

Docket No. LAKE 81-124-R 

Order No. 1124040; 3/2/81 

Docket No. LAKE 81-125-R 

Order No. 1124041; 3/2/81 

Civil Penalty Proceedings 

Docket No. LAKE 81-147 

A.C. No. 33-01157-03250-V 

Docket No. LAKE 81-148 

A.C. No. 33-01157-03251 

Powhatan No. 4 Mine 

Appearances: John T. Scott, III, Esq., Crowell & Moring, 

Washington, DC for Contestant/Respondent, 

Quarto Mining Company; 

Before: 

Patrick M. Zohn, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, PA 

for Respondent/Petitioner, MSHA. 

Judge Merlin 

931 
Statement of the Case 

The first eight docket numbers captioned above are 

notices of contest filed by Quarto Mining Company under 

section 105(d) of the Act to challenge the validity of eight 

orders of withdrawal issued by two inspectors of the Mine 

Safety and Health Administration for alleged violations of 

30 CFR 75.1003-2. The last two docket numbers are petitions 

for the assessment of civil penalties filed by the Secretary 

of Labor under section llO(a) of the Act for violations 

alleged in the orders. 

Prior to the hearing the parties filed preliminary 

statements, joint stipulations and memoranda of law. The 

hearing was held as scheduled on May 12, 1982. Documentary 

exhibits and oral testimony were received from both parties. 

At the conclusion of the hearing both parties waived the 

filing of written briefs and agreed I should render a 

decision based upon the transcript of the hearing and 

documentary evidence (Tr. 203). 

At the outset of the hearing the Solicitor moved to 

vacate Order 1121182 (LAKE 81-119-R) and to dismiss the 

civil penalty petition with respect to that item. The 

operator also moved to dismiss its notice of contest for 

that order. From the bench I granted the motions (Tr. 5). 

During the course of the hearing the Solicitor also 

moved to vacate Order 1121181 (LAKE 81-118-R) and to dismiss 

the civil penalty petition with respect to that item. 

The operator also moved to dismiss its notice of contest 

for that order. From the bench I granted the motions 

(Tr. 146). 

This left for decision the validity of the remaining 

six orders and associated penalty items. 

The Mandatory Standard 

Section 75.1003-2 of the mandatory standards provides 

in pertinent part as follows: 

§ 75.1003-2 Requirements for movement of 

off-track mining equipment in areas of active 

workings where energized trolley wires or trolley 

feeder wires are present; pre-movement requirements; certified and qualified persons. 

932 
(a) Prior to moving or transporting any unit 

of off-track mining equipment in areas of the 

active workings where energized trolley wires or 

trolley feeder wires are present: 

(1) The unit of equipment shall be examined 

by a certified person to ensure that coal dust, 

float coal dust, loose coal oil, grease, and other 

combustible materials have been cleaned up and 

have not been permitted to accumulate on such unit 

of equipment; and, 

(2) A qualified person, as specified in 

§ 75.153 of this part, shall examine the trolley 

wires, trolley feeder wires, and the associated 

automatic circuit interrupting devices provided 

for short circuit protection to ensure that proper 

short circuit protection exists. 

(b) A record shall be kept of the examinations required by paragraph '(a) of this section, 

and shall be made available, upon request, to an 

authorized representative of the Secretary. 

(c) Off-track mining equipment shall be moved 

or transported in areas of the active workings 

where energized trolley wires or trolley feeder 

wires are present only under the direct supervision of a certified person who shall be physically present at all times during moving or 

transporting operations. 

(d) The frames of off-track mining equipment 

being moved or transported, in accordance with 

this section, shall be covered on the top and on 

the trolley wire side with fire-resistant material 

which has met the applicable requirements of Part 

18 of Subchapter D of this Chapter (Bureau of 

Mines Schedule 2G) • 

(f) A minimum vertical clearance of 12 inches 

shall be maintained between the farthest projection of the unit of equipment which is being 

moved and the energized trolley wires or trolley 

feeder wires at all times during the movement or 

transportation of such equipment; provided, 

933 
however, that if the height of the coal seam does 

not permit 12 inches of vertical clearance to be 

so maintained, the following additional precautions 

shall be taken: 

(3) At all times the unit of equipment is 

being moved or transported, a miner shall be 

stationed at the first automatic circuit breaker 

outby the equipment being moved and such miner 

shall be: (i) In direct communication with persons 

actually engaged in the moving or transporting 

operation, and (ii) capable of communicating with 

the responsible person on the surf ace required to 

be on duty in accordance with § 75.1600-1 of this 

part; 

(5) No person shall be permitted to be inby 

the unit of equipment being moved or transported, 

in the ventilating current of air that is passing 

over such equipment, except those persons directly 

engaged in moving such equipment. 

The Cited Conditions or Practices 

Order No. 1121183 (LAKE 81-120-R) cites a violation of 

30 CFR 75.1003-2(f) (3) (i) for the following condition: 

While the conveyor belt tailpiece unit was 

being transported along the No. 1 main line track 

entry, a miner was not stationed at the first 

automatic circuit breaker outby the equipment 

being moved or in direct communication with 

persons actually engaged in the transporting 

operation. The unit contacted the trolley wire on 

2-27-81 at about 6:55 p.m. Person in charge was 

W. Mcintire, construction foreman. 

Order No. 1121185 (LAKE 81-121-R) cites a violation 

of 30 CFR 75.1003-2(f) (5) for the following condition: 

934 
While the conveyor belt tailpiece unit was 

being transported along the No. 1 main line track 

entry, w):lich came in contact with the trolley wire 

on 2-Z7-81 at about 6:55 p.m., persons were permitted to be inby the unit being transported and 

in the ventilating current of air that passed over 

the equipment. The persons were working on the 5 

right and 6 right sections of 3 south along with 

other personnel doing "dead work." Person in 

charge was w. Mcintire, construction foreman. 

Order No. 1124038 (LAKE 81-122-R) cites a violation of 

30 CFR 75.1003-2(a) (1) for the following condition: 

An inspection revealed that on February 27, 

1981, a belt conveyor tailpiece unit (off-track 

mining equipment) was moved along the No. 1 main 

line haulage road in violation of the following 

mandatory standard: The unit of equipment (belt 

conveyor tailpiece) was not examined by a certified 

person to ensure .that loose coal, coal dust, and 

float coal dust were cleared up and not permitted 

to accumulate on such equipment. Accumulations of 

loose coal, coal dust, and float coal dust were 

present on the entire surface area of the belt 

conveyor tailpiece unit in depths of 1/4 to 4 

inches. W. Mcintire, Recovery Foreman, was the 

person in charge. 

Order No. 1124039 (LAKE 81-123-R) cites a violation of 

30 CFR 75.1003-2(b) for the following condition: 

An inspection revealed that on February 27, 

1981, a belt conveyor tailpiece unit (off-track 

mining equipment) was moved along the No. 1 main 

line haulage road under energized trolley wire 

in violation of the following mandatory standard: 

The absence of entries into the record book indicated that a qualified person did not examine the 

trolley wires, trolley feeder wires, and the 

associated automatic circuit interrupting devices 

provided for short circuit protection to ensure 

that proper short circuit protection existed. 

W. Mcintire, Recovery Foreman, was the person 

in charge. 

935 
Order No. 1124040 (LAKE 81-124-R) cites a violation of 

30 CFR 75.1003-2(c) for the following condition: 

An inspection revealed that on Febr·uary 27, 

1981, a belt conveyor tailpiece unit (off-track 

mining equipment) was moved along the No. 1 main 

line haulage road under energized trolley wire 

without the direct supervision of a certified 

person. The recovery foreman in charge was not 

physically present during the transporting operation. W. Mcintire, Recovery Foreman, was the 

person in charge. 

Order No. 1124041 (LAKE 81-125-R) cites a violation of 

30 CFR 75.1003-2(d) for the following condition: 

An inspection revealed that on February 27, 

1981, a belt conveyor tailpiece unit (off-track 

mining equipment) was moved along the No. 1 main 

line haulage road under energized trolley wire in 

violation of the following mandatory standard: 

·The frame of the belt conveyor tailpiece unit was 

not covered on the top and trolley wire side with 

fire-resistant material. The top surface of the 

unit measured 10 feet, 6 inches in length by 

5 feet, 9 inches to 6 feet, 9 inches in width, and 

only one piece of fire-resistance belt measuring 5 

feet, 2 inches in length by 3 feet in width was 

placed on top of the unit. W. Mcintire, Recovery 

Foreman, was the person in charge. 

Stipulations 

In the first preliminary statement filed September 1, 

1981, the parties agreed to the following stipulations: 

1. Quarto Mining Company is the operator of 

the Powhatan No. 4 Mine. 

2. The operator and the Powhatan No. 4 Mine 

are subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 

1977. 

3. The presiding administrative law judge has 

jurisdiction over this proceeding. 

936 
4. Each of the inspectors who issued the 

subject orders was a duly authorized 

representative of the Secretary. 

5. A true and correct copy of each of the 

subject orders was properly served upon 

the operator. 

6. The annual coal tonnage produced by the 

Powhatan No. 4 Mine is between 1.1 and 

2.0 million, and the annual coal tonnage 

produced by the operator is over 10 million. 

7. The average number of violations assessed 

per year during the two years prior to the 

issuance of the [orders] was over 50. 

8. Imposition of any penalty in this proceeding will not affect the operator's 

ability to continue in business. 

On April 8, 1982, the parties submitted an additional 

19 stipulations which are as follows: 

1. On Monday, February 23, 1981, miners under 

the supervision of Support Foreman Walter 

Mcintire loaded four on-track supply cars in 

the 9 and 10 Right 1 North Section of the 

Powhatan No. 4 Mine of Quarto Mining Company. 

The four cars were loaded with belt structure, 

hydraulic oil, brattice cloth, empty oil 

cans, rags, trash and a belt tailpiece. This 

belt tailpiece had been modified by putting 

steel wings on it which increased its width. 

The wings were added so that when coal was 

dumped onto the tailpiece it would not 

overflow. The tailpiece was 10 feet 6 inches 

in length, 3 feet 1 inch in height and varied 

in width from 5 feet 9 inches to 6 feet 9 

inches. 

2. On Friday, February 27, 1981, at approximately 6:00 p.m., Mr. Mcintire instructed 

Dwight Lancaster, general inside laborer, and 

George Harold, stoper operator, to transport 

937 
the four loaded cars from the 9 and 10 Right 

1 North Section of the mine to the 3 South 

Runaround Section of the mine. Mr. Lancaster 

drove the locomotive pulling the cars and 

Mr. Harold accompanied him. The locomotive 

usually travels at about five miles per hour. 

3. Prior to the move of the tailpiece, it was 

not examined by a certified person to ensure 

that coal dust, float coal dust, loose coal, 

oil, grease and other combustible materials 

had been cleaned up and not permitted to 

accumulate on it. 

4. Because no examination of the tailpiece 

took place, no record could be kept and made 

available to an authorized representative of 

the Secretary of Labor. 

5. No certified person was physically present 

at all times during the movement of the 

tailpiece to directly supervise its trip from 

9 and 10 Right 1 North to the 3 South Runaround. 

6. The entire top of the tailpiece was not 

covered by fire resistant material, although 

a piece of rubber matting measuring 5 feet 2 

inches in length and 3 feet in width was 

placed on the right side or trolley wire side 

of the tailpiece. 

7. A minimum vertical clearance of 12 inches 

between the wings of the tailpiece and the 

energized trolley wires could not be maintained during the movement of the tailpiece 

in part due to the physical restrictions of 

the coal seam. 

8. The locomotive pulling the cars was using 

direct current electric power which was 

provided by a power source inby. During the 

move of the tailpiece, no miner was stationed 

to cut off the power source, no miner was 

outby in direct communication with Dwight 

Lancaster and George Harold while they were 

moving the tailpiece, and no miner was 

stationed at the first automatic circuit 

breaker outby the tailpiece at all times 

during the move. 

938 
9. The locomotive moving the four cars had 

traveled approximately two miles to the 95 

Crosscut on the main haulage line when at 

approximately 6:55 p.m., the wing on the 

right hand side of the tailpiece came in 

contact with the energized trolley wire, 

knocking down 78 feet of trolley wire and 

several cable hangers. When the belt tailpiece contacted the energized trolley wire, 

the automatic circuit interrupting device 

shut off the power in the line. The power 

came back on a minute later, interrupted 

again, and remained off. 

10. After the tailpiece contacted and pulled 

down the wire, Lancaster and Harold informed 

the Dispatcher and the Main Line Foreman of 

the incident and left their shift for the day 

with their section foreman Walter Mcintire. 

11. After Lancaster and Harold left the mine, 

members of the Union Safety Committee were 

contacted. Three members, Pete Polverini, 

Floyd Lucido, and Gary Anderson, arrived at 

the mine early in the evening and thereupon 

examined the tailpiece and the location of 

the incident. 

12. Members of the Union Safety Committee contacted the MSHA Subdistrict Off ice later that 

evening and informed it about the incident. 

Three days later, on Monday, March 2, 1981, 

Federal Coal Mine Inspectors Franklin Homko 

and William Allen McGilton were instructed by 

their Supervisor Louis P. Jones to conduct an 

inspection of the area where the incident had 

occurred. 

13. After examining the tailpiece and the 

location of the incident, the inspectors 

tentatively decided to issue eight orders to 

Quarto alleging violations of eight paragraphs 

of 30 C.F.R. § 75.1003-2. The inspectors 

then held a meeting with Quarto and union 

officials after their inspection. 

939 
14. At this meeting Hugh Lucas, General Mine 

Superintendent for the No. 4 Mine, stated 

that Quarto's position was that a belt 

tailpiece was not off-track mining equipment. 

For this reason, Quarto believed that the 

requirements set forth in Section 75.1003-2, 

which apply only to off-track mining equipment, did not apply to the transport of a 

tailpiece. 

15. The two inspectors took Quarto's view under 

advisement and contacted by telephone their 

subdistrict manager in St. Clairsville, Ohio, 

Mr. George Svilar, to reaffirm their belief 

t4at a belt tailpiece was classified as offtrack mining equipment. Based on their 

investigation, interviews, the call to 

Mr~ Svilar, and interpretation of the applicable regulations, the inspectors issued 

eight § 104(d) (2) orders of withdrawal. 

16. Inspector McGilton issued four orders for 

violations of the following: 

Order No. 

1124038 

1124039 

1124040 

1124041 

Paragraph of 30 C.F.R. 

§ 75.1003-2 Allegedly 

Violated 

75.1003-2(a) (1) 

75.1003-2(b) 

75.1003-2(c) 

75.1003-2(d) 

17. Inspector Homko issued four orders for 

violations of the following: 

Order No. 

1121181 

1121182 

1121183 

1121185 

Paragraph of 30 C.F.R. 

§ 75.1003-2 Allegedly 

Violated 

30 CFR 75 .1003-2 (f) (1) (ii) 

3 0 CFR 7 5. 10 0 3-2 ( f) ( 2) 

30 CFR 75.1003-2 (f) (3) (i) 

30 CFR 75.1003-2 (f) (5) 

940 
18. The parties to this litigation also stipulate to Facts Not In Dispute listed at pages 

2-3 of Quarto's Response to Pretrial Order 

filed on September 1, 1981. 

19. The parties also stipulate that the transcript of MSHA's Deposition of Mr. Hugh Lucas 

be introduced as evidence. A copy of that 

transcript is filed with these Joint Stipulations. 

In addition, at the hearing the parties stipulated that 

24 men were inby the tailpiece when it was being moved (Tr. 6). 

The parties also stipulated at the hearing that the 

underlying 104(d) (1) citation and order had been validly 

issued for the purpose of setting off the chain in which 

subject orders were issued (Tr. 97). 

I accepted all the stipulations. 

Discussion and Analysis 

Existence of a Violation 

The existence of a violation depends upon whether the 

tailpiece was off-track equipment. In accordance with the 

factual stipulations, the parties agree that if the tailpiece 

is off-track equipment, the conduct of the operator violated 

the Act (Tr. 6). 

"Off-track" is not defined in the Act or regulations. 

Neither is "on-track." However, on-track has a well accepted 

meaning. On-track is equipment which moves on rails or 

tracks either under its own power like a locomotive or as in 

the ca·se of a mine car under the power of another vehicle to 

which it is attached (Tr. 150). 

I believe the determination of what is off-track must 

be reached by placing that term in juxtaposition to ontrack. The key to both terms is mobility, how something 

moves. On-track refers to a certain type of movement by 

machines, i.e., on rails (Tr. 150). Off-track refers to 

another kind of movement by machinery, i.e., not on rails, 

as for instance on wheels like a shuttle car. As operator's 

safety director recognized at the hearing, off-track equipment, 

941 
like on-track, is not limited to self-propelled machines but 

includes equipment which is pulled or moved along by another 

vehicle which has power (Tr. 150-151). The operator's 

safety director offered a fan on skids which can be pulled 

about by a self-propelled machine as an example of off-track 

equipment without its own power of mobility (Tr. 182). 

The tailpiece in question was mounted on skids (Tr. 186). 

It could be moved about and indeed was intended to be moved 

about the section without damage to the mine floor by being 

attached to a shuttle car which had power (Tr. 187, 189). 

It is therefore mobile like the fan which the operator's 

safety director admitted is off-track. The operator's 

safety director admitted that the mobility of the fan and 

the tailpiece were the same (Tr. 188-190). In light of the 

foregoing, I conclude the tailpiece is off-track equipment 

within the meaning of the mandatory standard. 

Both parties purport to rely upon the decision in 

Southern Ohio Coal Company v. Secretary of Labor, 3 FMSHRC 

1449 (1981, which holds that this mandatory standard only 

applies to "complete or reasonably complete pieces of offtrack mining equipment" and does not apply to "component 

parts.of off-track mining equipment." However, neither 

party seems certain what that decision means. So many 

things can be characterized as components of a larger 

entity and no one offered a basis for me to distinguish 

between a component and something that is reasonably complete. Therefore, I cannot apply that decision here. 

Insofar as the mandatory standard covers a "unit" of 

off-track equipment, I conclude this tailpiece is included. 

It is a single or distinct part used for a specific purpose. 

Webster's New World Dictionary (2nd College Edition 1972). 

The argument that the term off-track is too vague also 

must be rejected. As set forth above, the terms off-track 

and on-track relate to specific aspects of mine machinery 

and are susceptible of precise delineation. To be sure, it 

would have been better had the Secretary taken appropriate 

action to define the parameters of these terms. However, 

his failure to do so does not mean they are too vague to be 

properly defined and enforced in this proceeding. The 

situation here is far different from one where a wholly 

subjective description such as "excessive" is employed as 

the sole standard. Secretary of Labor v. Quarto Mining 

Company, 2 FMSHRC 2669 (1980) I appeal dismissed, 3 FMSHRC 

2051 (1981). 

942 
Accordingly, I conclude this tailpiece was off-track 

equipment within the purview of the mandatory standard and 

that therefore, the operator violated the Act. 

Unwarrantable Failure 

The governing definition of unwarrantable failure is 

still to be found in Zeigler Coal Company, 7 IBMA 280 

(1977) decided under the 1969 Act which held in pertinent 

part as follows at 295-296: 

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 of due 

diligence, or because of indifference or lack of 

reasonable care. 

Zeigler was specifically approved during consideration 

of the 1977 Act. S.Rep. 95-181, 95th Cong., 1st Sess., at 

31-32 (1977), reprinted in Senate Subcommittee on Labor, 

Committee on Human Resources, 95th Cong., 2nd Sess., 

Legislative History of the Federal Mine Safety and Health 

Act of 1977, at 619-620 (1978). 

In this case it is clear that the operator knew of the 

conditions or practices which comprised its failure to 

comply with the mandatory standard. The evidence makes 

clear that the operator's recovery foreman was in charge of 

moving the tailpiece and either knew or should have known of 

all the circumstances surrounding the move. 

This is not however, the end of the matter. Under the 

circumstances presented here further inquiry must be made 

with respect to whether the operator knew or should have 

known that the conditions or practices constituted a violation. 

I recognize that after pointing out that the legislative 

history of the 1969 Act was not clear on the point, Zeigler 

concluded that unwarrantability did not depend upon knowledgeability of the operator with regard to a matter of law, 

i.e., whether it had committed a violation. But Zeigler was 

an accumulations case under 30 CFR 75.400. It did not 

943 
involve a situation like this one and I do not believe it 

should be dispositive here. The evidence in this case shows 

that tailpieces had been routinely moved from section to 

section in this mine without complying with 75.1003-2. 

Never had tailpieces been recorded in the book kept by the 

operator for the purpose of recording moves of off-track 

equipment and never had the operator been cited for failure 

to apply 30 CFR 75.1003-2 to tailpieces (Tr. 125-126). The 

MSHA inspector thought the operator's belief that the tailpiece was not off-track was reasonable, although erroneous 

(Tr. 135-138). 

Finding unwarrantable failure and therefore imposing 

upon the operator the harsh sanctions flowing from mine 

closure and high penalty assessment is offensive to fundamental fairness where, as here, the Secretary for years has 

done nothing to interpret the regulatory language or to 

advise the operator what is expected of it. As previously 

stated, the Secretary's failure to act does not prevent 

interpretation and application of the mandatory standard in 

this case. However, it is quite another matter to hold the 

operator guilty of unwarrantable failure and subject it to 

attendant severe punishments in such a situation. This the 

Act should not be interpreted to require. I conclude 

therefore, the operator is not guilty of unwarrantable 

failure in this case. 

Modification of Orders to Citations 

In light of the foregoing, the subject 104(d) (2) 

withdrawal orders cannot stand as withdrawal orders under 

that section because there was no unwarrantable failure. 

Pursuant to section 105(d) of the Act, I hereby modify these 

orders to 104(a) citations. Under section 105(d) the 

Commission and its Judges have authority after a hearing to 

affirm, modify or vacate an order. I recognize that Board 

decisions under the 1969 Act denied administrative law 

judges the power to modify. See e.g., Freeman Coal Mining 

Corp., 2 IBMA 197, 209-210 (1973), aff'd sub nom. on other 

grounds, Freeman Coal Mining Co. v. IBMA,--S04-P:-2d-=r41 (7th 

Cir. 1974). However, another approach seems to be emerging 

under the 1977 Act. See the Commission's decision in Old 

Ben Coal Company, 2 FMSHRC 1187 (1980). Administrative law 

judges have modified orders under the 1977 Act. Consolidation 

Coal Company, 3 FMSHRC 2207 (1981); Youngstown Mines Corporation, 

3 FMSHRC 1793 (1981). In this case neither party would be 

prejudiced by modification of the orders to citations. Both 

parties have had full notice and opportunity to argue every 

conceivable issue and they have done so. 

944 
Other considerations also dictate that these unwarrantable orders be modified to citations. The instant consolidated 

proceedings involve penalty assessments as well as notices 

of contest. The Commission has held that the allegation of 

a violation survives the vacation of an imminent danger or 

unwarrantable failure withdrawal order. According to the 

Commission the allegation of a violation and the assessment 

of a civil penalty remain in citations issued by the Secretary 

after the withdrawal orders are vacated. Island Creek Coal 

Company, 2 FMSHRC 279 (1980); Van Mulvehill Coal Company, 

Inc., 2 FMSHRC 283 (1980). Allowing modification of the 

instant orders to citations at the administrative law judge 

level would be the most expeditious way of handling the 

matter. It would avoid wasting time and money by requiring 

the Secretary to engage in the pro forma tasks of issuing 

new citations and filing new petitions for assessment of 

civil penalties. 

In light of the foregoing, the subject withdrawal 

orders are modified to 104(a) citations. 

Issuance of Multiple Orders 

Section llO(a) of the Act provides "Each occurrence of 

a violation of a mandatory health or safety standard may 

constitute a separate offense." The operator argues that 

there was only one occurrence--moving the tailpiece, and 

that therefore only one order should have been issued. The 

operator also relies upon an MSHA policy memorandum dated . 

October 3, 1979, which provides that: 

[W]here there are multiple violations of the same 

standard which are observed in the course of an 

inspection and which are all related to the same 

piece of equipment or to the same area of the 

mine, such multiple violations should be treated 

as one violation and one citation should be issued. 

I cannot accept the operator's position. In allowing separate 

citations, section llO(a) refers to the occurrence of a 

"violation" not the occurrence of an event which may be 

composed of multiple incidents or happenings, each with its 

own identity and each of which may independently violate the 

Act for a different reason. In this case moving the tailpiece involved several incidents such as miners inby the 

equipment, failure to examine the equipment, lack of supervision by a certified person, absence of fire resistant 

945 
material, etc., each of which violated a different part_of 

the mandatory standard. Section llO(a) allows each of these 

to be cited as a separate violation. The MSHA memorandum 

does not support the operator's position. The examples 

given in the memorandum, ~' loose ground in four places 

on a haulageway, make clear that the memorandum is directed 

at the same thing happening more than once in the same area 

or with respect to the same piece of equipment. Here 

different things happened and each of .them violated a 

different sub-section of the mandatory standard for a 

different ~eason. 

Accordingly, multiple violations properly were found 

and separate orders, now modified to citations, were properly 

issued for each of them. As set forth infra, the fact that 

the violations arose out of the same event may be taken into 

account in determining the appropriate amount of civil 

penaltie~ to be assessed~ 

The Amount of Civil Penalties 

Section llO(i) of the Act sets forth the factors which 

must be considered in assessing civil penalties. 

In accordance with the stipulations, I find the operator 

is large in size, imposition of penalties will not affect 

its ability to continue in business, and its history of 

prior violations is rather significant. As agreed at the 

hearing, I further find abatement was within a reasonable 

time and in good faith (Tr. 29-30). 

As shown by the testimony, the violations posed hazards 

such as smoke inhalation. I conclude they were moderately 

serious. 

As set forth above, I do not believe the operator was 

guilty of unwarrantable failure. However, since the recovery 

foreman was on the scene and in charge of the move, the 

operator must be held to have been negligent. In addition, 

I believe the fact that all violations were committed in 

moving the tailpiece should be borne in mind in assessing 

the degree of negligence and gravity. This situation is 

somewhat different than where the operator commits several 

wholly unrelated serious violations and is negligent in 

situations which have nothing to do with each other. 

946 
In light of the foregoing, a penalty of $100 is 

assessed for each of the violations cited in the six orders 

now modified to citations. 

Order 

It is ORDERED that the Solicitor's motions to vacate 

Orders 1121181 and 1121182 be GRANTED and that LAKE 81-118-R 

and LAKE 81-119-R be DISMISSED. 

It is ORDERED that 104(d) (2) Orders 1121183, 1121185, 

1124038, 1124039, 1124040 and 1124041 be Modified to 104(a) 

citations. 

It is ORDERED that within 30 days of the date of this 

decision the operator pay penalties of $600. 

Law Judge 

Distribution: Certified mail. 

John T. Scott, III, Esq., Crowell & Moring, 1100 Connecticμt 

Avenue, N.W •. , Washington, DC 20036 

Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department 

of Labor, 881 Federal Building, 1240 East Ninth Street, 

Cleveland, OH 44199 

947 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

'1~'{ 2 6 \982 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

CLAY KITTANNING COAL CO., INC., 

Respondent 

Docket No. WEVA 81-11 

A.C. No. 46-05653-03004 

Gail Mine 

DECISION 

Appearances: 

Before: 

David E. Street, Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, Pennsylvania, for 

Petitioner; 

William Ray, Summersville, West Virginia, for Respondent. 

Judge Melick 

This case is before me upon a petition for assessment of civil penalty 

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

30 u.s.c. § 801 et~-, the "Act," in which the Secretary has proposed 

penalties of $2,000 against the Clay Kittanning Coal Co., Inc., (Clay 

Kittanning) for four violations of mandatory standards. Clay Kittanning 

does not deny the violations, but maintains that an independent contractor 

was solely responsible for those violations and that therefore it is not 

liable for any civil penalties under the Act. Accordingly, 'the general 

issue in this case is whether Clay Kittanning is responsible in any way for 

the admitted violations set forth in the petition for assessment of civil 

penalty and, if so, what are the appropriate civil penalties to be assessed 

for those violations. Evidentiary hearings were held in this case in 

Charleston, West Virginia. 

Liability of Mine Owner 

Clay Kittanning is admittedly the owner of the Gail Mine at which the 

orders and citation at bar were issued. William Ray, President and spokesman for Clay Kittanning insists, however, that the company was not at all 

responsible for the cited violations because, at the time of the inspection, 

the Gail Mine was being operated by an independent contractor, William White, 

who was doing business as the Palma Coal Company. 

948 
Even assuming, arguendo, that Mr. Ray's allegations were correct, it is 

now the clearly established law that mine owners may be held responsible 

without fault for independent contractor violations under the Act. Section 

3(d) of the Act; Cyprus Industrial Minerals Company v. FMSHRC, 664 F.2d 1116 

(9th Cir. 1981; Republic Steel v. Interior Board of Mine Operations, S81 F.2d 

868 (D.C. Cir. 1978); Bituminous Coal Operator's Association v. Secretary of 

Interior, S47 F.2d 240 (4th Cir. 1977). The Secretary's decision to proceed 

against an owner for such violations is, however, subject to review for 

impermissible motives. Secretary v. Phillips Uranium Corporation, 4 FMSHRC 

(April 27, 1982). Administrative efficiency or convenience is 

apparently an impermissible motive regardless of the results achieved by the 

Secretary's action. Phillips Uranium, supra. Since the Phillips decision 

was rendered subsequent to the hearings in this case specific inquiry was not 

made at those hearings into the Secretary's initial motivation for proceeding 

solely against the mine owner herein. Evidence exists, however, from which 

the Secretary's motives may be inferred. 

At the time of the inspection here at issue, February 7, 1980, the 

Secretary was following an interim policy of proceeding only against owneroperators for violations of the Act. Phillips Uranium, supra. Subsequently, 

on July 1, 1980, the Secretary published his final rules establishing guidelines for holding independent contractors as well as owners responsible for 

the safety and health requirements of the law. 4S Fed. Reg. 44494. Even 

assuming, .arguendo, that the Secretary's motives were impermissible when the 

citation and orders at bar were .issued under his interim policy, it is 

apparent in this case that the Secretary later sought to correct any such 

deficiencies by attempting to apply his new guidelines. 

In an obvious good faith effort to apply those guidelines to the case at 

bar the Secretary sought through formal discovery procedures under Connnission 

Rules SS and S7, 29 C.F.R. §§ 2700.SS and 2700.S7 to ascertain the proper 

entity or entities against whom enforcement action should be pursued. 

Accordingly, on March 27, 1981, the Secretary served upon Clay Kittanning a 

request for production of "any or all contracts between the owner/Respondent, 

Clay Kittanning, Coal Co., Inc., and William White concerning the functions, 

duties and responsibilities of William White at the Gail Mine prior to 

February 27, 1980," and served written interrogatories relating to the 

responsibilities for operation of the Gail Mine. Clay Kittanning did not 

respond to either discovery request and the Secretary thereafter on June 17, 

1981, filed a motion for sanctions against Clay Kittanning for this failure 

to reply. 

In response to that motion, the undersigned issued an order to 

Clay Kittanning to show cause providing in part as follows: 

* * * Respondent, Clay Kittanning Coal~Company, Inc., is 

ordered to answer the said interrogatories and to produce the 

documents requested by Petitioner within lS days or show good 

reason for not doing so. Otherwise, the undersigned will take 

appropriate sanctions. Such sanctions may include issuing an 

949 
order refusing to allow Respondent to support defenses relating to the requested information, prohibiting the introduction 

of related evidence at any hearing in this case, and placing 

Respondent in default and ordering immediate and full payment 

of MSHA's proposed penalty. Rule 37, Federal Rules of Civil 

Procedure. 

Respondent failed to reply to the show cause order and on August 6, 

1981, the undersigned issued pursuant to Federal Rule 37(b)(2)(A), an Order 

That Facts Be Taken As Established. That Order provided that the following 

facts be taken as established: (1) that Respondent is the operator of the 

Gail Mine, within the meaning of section 3(d) of the Federal Mine Safety 

and Health Act of 1977, and (2) that Respondent is the party solely responsible for the conditions and equipment cited for violations of the Act or 

regulations in the above captioned proceeding." J:./ 

Under the circmnstances it is clear that the Secretary had acted reasonably and prudently in his efforts to ascertain the responsible party or 

parties but was thwarted in these efforts by the failure of the mine owner to 

comply with lawful discovery requests and orders of the Administrative Law 

Judge. 2/ Clearly there was no abuse of the Secretary's discretion here. 

This case is accordingly distinguishable from Phillips Uranium. Since Clay 

Kittanning does not deny the existence of any of the violations the sole 

issue remaining for determination is the amount of civil penalty for which 

Clay Kittanning is responsible. 

1/ Inasmuch as Mr. Ray contended at subsequent hearings that the Secretary 

already knew the answers to the questions asked in the interrogatories, and 

that it was therefore unfair to bar him from presenting evidence at hearing 

on the question of the proper entity or entities to be held responsible for 

the violations I allowed evidence at hearing concerning that issue. The 

evidence did not demonstrate, however, that the Secretary had sufficient 

information before initiating discovery from which he could have determined 

these issues with any degree of certainty. Accordingly, the "Order That 

Facts Be Taken As Established" issued August 6, 1981, is dispositive of the 

issue of liability for the violations. It is also noted that although given 

ample opportunity to do so, Mr. Ray never did provide complete information 

concerning the relationship between employees, officials and shareholders of 

Clay Kittanning and the employees and owners of Palma Coal Company, the 

purported independent contractor. It was disclosed at hearing, however, that 

the mine superintendent and certified electrician for the independent contractor was also an official of the corporate mine owner. 

]:_/ It was also disclosed at hearing that the owner's relationship with the 

independent contractor herein was terminated shortly after the citation and 

orders at bar were issued and that Mr. Ray did not then know where the 

contractor could be located. 

950 
.. 

The Amount of Penalty 

Citation No. 650520 alleges a violation of the standard at 30 C.F.R. 

§ 75.703 and reads as follows: 

No frame ground was provided for the roof bolting machine 

in that the frame ground conductor was doubled back and taped 

to the cable and was not connected to the return conductor at 

the 250 volt direct current feeder line. This condition was 

listed in the book for examination of the electric face equipment on 1/30/80 and was dated and initialed by Ed McClure, 

superintendent and certified electrician at this mine. This 

machine was parked in No. 3 entry and the mine·floor contained 

water from 0 to 4 inches deep. 

As previously noted, the existence of the cited conditions is not disputed. 

Moreover, the uncontradicted testimony of MSHA inspector Willis is that if 

one of the power conductors had been damaged and the damaged portion of the 

cable had touched a metal part of the machine, the machine frame would become 

energized thereby subjecting the machine operator to electrical shock. The 

hazard was amplified by the existence of water and wet conditions on the mine 

floor. Under the circumstances, I find that a serious hazard from electrical 

shock in fact existed as cited and was "significant and substantial." See 

Secretary v. Cement Division, National Gypsum Company, 3 FMSHRC 822 (1981). 

I further find that Clay Kittanning was grossly negligent in permitting 

the condition to exist. The fact that the frame ground had been doubled back 

and taped to the cable, requiring some affirmative act, is clear evidence of 

an intentional violation. Moreover, it is uncontradicted that an entry in 

the inspection book for the cited machine, on January 30, 1980, some 8 days 

prior to the discovery of the condition by Inspector Willis, showed that even 

as of that date, it had not been frame grounded. The violation herein was 

abated timely. 

Order No. 650421 also alleges a violation of the standard at 30 C.F.R. 

§ 75.703 and reads as follows: 

The cutting machine was not provided with a frame ground 

in that the frame ground was doubled back and taped to the 

cable and was not connected to the return feeder line of 

the 250 volt direct current power system. This condition was 

listed in the book for the examination of electric face 

equipment at this mine and was dated and initialed by Ed 

McClure, superintendent and certified electrician at this 

mine. The cutting machine was located in No. 3 entry. The 

mine floor in this entry was wet and water was 0 to 4 inches 

deep. 

The existence of the cited condition is not disputed nor is the testimony of 

Inspector Willis that the negligence and the extent of the hazard was the 

951 
same as in the citation previously discussed. Accordingly, I find the same 

degree of negligence and hazard existing here. The condition was apparently 

properly abated on the following day. The violation was also "significant 

and substantial" under the National Gypsum test. 

Order No. 650426 alleges a violation of the standard at 30 C.F.R. 

•. § 75.601 and reads as follows: 

A suitable circuit breaker or other device approved by 

the Secretary was not provided for the trailing cables 

applying power 250 volts direct current to the roof bolting 

and cutting machines at this mine. The cables were connected 

directly to the 500 MCM DC feeder lines. 

According to the undisputed testimony of Inspector Willis, the trailing cable 

was not protected its entire length. Willis found that insulation had been 

removed from the trailing cable and the cable was clamped directly to the 

500 MCM feeder line without intervening fuses or a circuit breaker. He 

pointed out that in the absence of short circuit protection for the trailing 

cable, there was indeed a hazard of fire or, if the insulation melted to 

expose the cable, of shock or electrocution. Willis observed that the operator did not have on the premises sufficient equipment to correct the cited 

conditions. Superintendent McClure, who was also the only certified electrician at the mine, acknowledged the deficiencies and admitted that he did 

not have a fuse, circuit breaker, or other overload device·available at the 

mine to correct the deficiencies. 

Under the circumstances, I find that the cited condition was a serious 

hazard to the miners and, because it required an affirmative act to create, 

was the result of gross negligence. The violation was accordingly "significant and substantial." One of the cited conditions was corrected by the 

following day when a 125 amp dual element fuse was furnished for the cutting 

machine. A 90 amp duel element fuse was not provided for the roof bolting 

machine until later and the violation relating thereto was not abated until 

February 14, 1980. 

Order No. 650428 alleges a violation of the standard at 30 C.F.R. 

§ 77.701 and reads as follows: 

The metal frame of the battery charger located near 

No. 1 entry on the surface was not frame grounded in that the 

grounding conductor was connected to the grounding medium. 

The order was subsequently modified to read as follows: "Order of Withdrawal 

No. 6540428 is modified to state that the grounding conductor was not 

connected to the grounding medium for the 240 volt system." The uncontradicted testimony of Inspector Willis is that such a condition would present 

a shock hazard if the battery charger were to develop a short circuit and 

energize the frame of the battery charger. The cables leading into the 

charger were located only a foot off the ground in an area commonly used by 

952 
miners. I find that the condition accordingly presented a risk Qf serious 

injury from electrical shock. The violation was accordingly "significant and 

substantial." Inasmuch as the condition required an affirmative act to 

create, I find that it was the result of gross negligence. 

In determining the appropriate penalties for the admitted violations, I 

have considered the relationship of the mine superintendent for the independent contractor with the mine owner. Both before and after the violations 

here cited that same individual, Ed McClure~ had also acted as mine superintendent for the mine owner and at relevant times was also an official of the 

corporate mine owner. Since that same person was also the only certified 

electrician at the Gail Mine and since each of the violation's in this case 

was clearly caused by affirmative action to electrical equipment or electrical cables it is apparent that the negligence for the violations may be 

directly attributed to the corporate mine owner, i.e., Clay Kittanning. 

Secretary v. Ace Drilling Coal Company, Inc., 2 FMSHRC 790 (April 1980). 

In determining the amount of penalty I have also considered that the mine 

owner was·small in size and had no history of violations. Under the circumstances ·I find that the following penalties are appropriate: Citation No. 

650520-$600; Order No. 650421-$600; Order No. 650426-$600 Order No. 

650428-$600. 

ORDER 

Clay Kittanning Coal Company, Incorporated is ordered to pay penalties 

of $2,400 within 30 days of the date of this decision. 

Distribution: 

David E. Street, Esq., Office of the So citor, U S. Department of Labor, 

14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Mr. William Ray, President, Clay Kittanning Coal Company, Inc., 

P.O. Box 296, Summersville, WV 26651 (Certified Mail) 

953 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 HAY 271982 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

UNITED STATES STEEL CORPORATION, 

Respondent. 

) 

) CIVIL PENALTY PROCEEDING 

) 

) DOCKET NO~ LAKE 81-116-M 

) 

) A/C No. 21-00282-05021 V 

) 

) MINE: Minntac 

) 

~~~~~~~~~~~~~~~~-> 

UNITED STATES STEEL CORPORATION, 

Contestant, 

v. 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Respopdent. 

) 

) CONTEST OF CITATION PROCEEDING 

) 

) DOCKET NO. LAKE 81-77-R 

) 

) Citation No. 293731 

) Issued December 29, 1980 

) 

) MINE: Minntac 

) ~~~~~~~~~~~~~~~~~~ 

DECISION 

APPEARANCES: 

Peter D. Broitman, Esq., and Janet M. Graney, Esq. 

Office of the Solicitor 

United States Department of Labor 

230 S. Dearborn Street, Eighth Floor 

Chicago, Illinois 60604 

For the Petitioner 

Louise Q. Symons, Esq. 

United States Steel Corporation 

600 Grant Street 

Pittsburgh, Pennsylvania 15230 

For the Respondent 

Before: Judge Virgil E. Vail 

STATEMENT OF THE CASE 

The above two cases, which were consolidated for hearing, involve an 

alleged violation of section llO(a) of the Federal Mine Safety and Health 

954 
Act of 1977 (hereinafter the "Act"), 30 U.S.C. 820(a) (Supp. 111, 

1979) •. !/ 

Docket No. Lake 81-116-M involves a petition by the Secretary of 

Labor, (Secretary), for assessment of a civil penalty against respondent 

for an alleged violation of 30 C.F.R. § 55.12-14. ];/ 

Docket No. Lake 81-77-R involves a Notice of Contest filed by the 

respondent of Citation No. 293731 which alleged a violation of section 

104(d)(l) of the Act. The Secretary filed a motion to amend its petition 

changing a violation of 104(d)(l) to a violation of section 104(a) of the 

Act, and a reduction of the proposed assessment of a penalty of $750 to 

$345. This motion was granted. 

A hearing was held in Duluth, Minnesota, where the parties were 

represented by counsel. Post-hearing briefs were filed. 

STIPULATION 

The parties stipulated to the following: 

1. The Administrative Law Judge has jurisdiction in this matter. 

2. The inspector who issued Citation No. 293731 is and was a duly 

authorized representative of the Secretary. 

3. U.S. Steel is a large operator within the meaning of 39 C.F.R. 

§ 100.3(b)(2)(ii). 

4. Minntac, is a large mine within the meaning of 30 C.F.R. 

§ 100.3(b)(l)(ii). 

1/ Section llO(a) of the Act provides as follows: 

The operator of a coal or other mine in which a violation occurs of a 

mandatory health or safety standard or who violates any other provision of 

this Act, shall be assessed a civil penalty by the Secretary which penalty 

shall not be more than $10,000 for each such. violation. Each occurrence of 

a violation of a mandatory health or safety standard may constitute a 

separate offense. 

2/ 30 C.F.R. 55.12-14 states in pertinent parts as follows: 

••• When such energized cables are moved manually, insulated hooks, 

tongs, ropes, or slings shall be used unless suitable protection for 

personnel is provided by other means •••• 

955 
5. Joint Exhibit A (computer printout) represents a true and correct 

record of all violations for Minntac Mine for the p~riod beginning January 

1, 1977 and ending January 1, 1981. 

6. If a violation is found, the assessment of the proposed penalty 

would not impair U.S. Steel's ability to remain in business. 

7. Exhibit Bis a true and correct copy of a safety memorandum 

prepared by U.S. Steel for dissemination to its employees on or about 

December 18, 1980. 

8. The following employees manually moved the cable identified in 

Citation No. 293731 on December 29, 1980 without the use of protective 

hooks, tongs, ropes, slings, or other personal protective equipment: Eugene 

Varani, Mary Ellen Jaskela, Michele Heinzer, Richard Paine, Terrance 

Stachovich. 

ISSUES 

Whether respondent violated 30 C.F.R. § 55.12-14, and, if so, the 

appropriate amount of the civil penalty which should be assessed for such 

violation pursuant to section llO(a) of the Act? 

FINDINGS OF FACT 

1. Minntac is a large taconite mine utilizing approximately fourteen 

drills and twenty-eight shovels in its operation. Each piece of equipment 

is electrically powered through a trailing cable which varies in length but 

averages from four to five thousand feet and sometimes reaches nine 

thousand feet. 

2. The type of trailing cable primarily used at Minntac is U.S. Steel 

Tiger brand rated at 8kV (8000 volts) with a weight of approximately three 

pounds per foot. It is a shielded type cable incorporating three copper 

phase conductors each wrapped with an insulating material and encased in a 

braided wire mesh which in turn is in physical contact with two ground 

wires. There is also a separate insulated ground wire 1n the system that 

can be used as a continuous ground monitor. Minntac does not have a continuous ground monitor system in use. 1/ 

3. The trailing cables attached to the various pieces of equipment 

run to either a substation or a meter house. The substation is a building 

on a platform containing a transformer and various electrical switching and 

metering devices capable of serving four pieces of equipment used in the 

mining process. In those situations where the substation does not contain 

OCB 1 s (oil circuit breakers) a meter house is used to feed the electrical 

current to the equipment. 

3/ Joint Exhibit C. 

956 
4. After the trailing cable is attached from its power source to the 

piece of equipment it is to serve and energized, the system is so designed 

that should a disruption or break (fault) in the electrical system occur, 

the current goes to the ground wire in the cable and is carried back to the 

meter house or substation where it trips a circuit. breaker. A phase-toground fault will trip the circuit breaker in the meter house in one-one 

hundreds (.01) of a second. A second back up ground-fault tripping device 

located usually in the substation is set to trip in three seconds. The 

ground-fault system is designed to trip the circuit breakers whenever there 

is a leakage of 5 amps or more of current. 

5. Respondent utilizes four procedures for testing trailing cables, 

particularly when reconnecting a trailing cable to the piece of equipment 

it is intended to power. ·After one end of the trailing cable is attached 

to the piece of equipment it is to power and the other end to the meter 

house or self-contained substation, the electrician, using a special 

testing transformer, will perform a high voltage test by placing more than 

twice the voltage on the three copper phase wires than is used in normal 

operations. A high current test will show if there is a fault in the cable 

as it will likely burn at that location. A third test, termed a continuity 

test, is to determine if the ground wire from the piece of equipment to the 

meter house is intact. The fourth test is a ground tripping test to 

determine that the ground-fault tripping system is working properly. 4; 

6. Respondent's employees at Minntac are assigned the task of moving 

trailing cables manually and in the past have done so without using 

protective gloves. 

7. There are no recorded instances of anyone receiving an 

electrically caused injury from handling trailing cables at respondent's 

Minntac Mine since the mine started in 1967. 

8. On December 18, 1980, a general safety contact was issued by 

respondent to its employees which stated as follows: 

General Safety Contact (I.e. #18)MSHA Regulation 55.12-14 

A recent interpretation of this regulation requires 

that insulated hooks, tongs, ropes, slings, or proper gloves 

be used to handle live 4160 volts or 440 volt trailing cables 

(shovels, drills, pumps, etc.). As rapidly as possible, we 

are providing this equipment for use in handling such cables. 

4/ Exhibit R-4. 

957 
Although this is not a company safety rule, and we feel 

that there is not a safety hazard with our present method of 

handling this type of. cable, the MSHA regulation must be complied with. M. Van Deline, Superintendent - Taconite Mining. 

(Emphasis is that of U.S. Steel). 2J · 

9. On December 29, 1980, a cable crew consisting of five of 

respondent's employees manually moved a trailing cable energized to a 

potential of 4160 volts without using hooks, tongs, ropes, slings, or the 

electricians gloves that had been supplied them by their employer. 

10. The respondent's ground-fault system is set to trip out or 

disconnect at a level of five amps or more. E~posure of miners.to current 

with amps in excess of five milliamps has a potential for injury. Miners 

exposure to amps between 5 milliamps and the 5 amps required to trip the 

ground-fault system has the potential of causing serious injury or death. 

DISCUSSION 

Minntac Mine is a large taconite mine utilizing approximately fourteen 

drills and twenty-eight shovels in its mining process. These machines are 

powered electrically through power cables which are also referred to as 

trailing cables. As a result of an inspection of Minntac Mine on December 

29, 1980, Citation No. 293731 was issued charging a violation of mandatory 

safety standard 30 C.F.R. § 55.12-14 which provides as follows: 

Power cables energized to potentials in excess of 150 volts, 

phase-to-ground, shall not be moved with equipment unless sleds 

or slings, insulated from such equipment, are used. When such 

energized cables are moved manually, insulated hooks, tongs, 

ropes, or slings shall be used unless suitable protection for 

persons is provided by other means. This does not prohibit 

pulling or dragging of cable by the equipment it powers when 

the cable is physically attached to the equipment by suitable 

mechanical devices, and the cable is insulated from the equipment in conformance with other standards in this part. 

At the commencement of the hearing in this case, the parties 

stipulated that five of respondent's employees manually moved a trailing 

cable which was energized to a potential in excess of 150 volts, phase-toground, withqut using insulated hooks, tongs, ropes, slings, or other 

personal equipment such as protective gloves which had been furnished 

employees for such use (Tr. Vol. 1, p. 13). 

~ Joint Exhibit B. 

958 
Historically, respondent's employees have been manually moving 

trailing cables without using protective gloves for several years prior to 

December 1980. Respondent has in the past relied upon a belief that the 

ground-fault system in the shielded power cable and four testing procedures 

used whenever cable is reconnected to equipment affords suitable protection 

by other means within the requirement of the standard for miners manually 

moving energized cable (Tr. Vol. 13). However, several events occ.urred in 

1980 which prompted respondent to issue a general safety contact on 

December 18, 1980 providing for the use of proper gloves, in addition to 

other devices required by § 55.12-14, whenever energized cable is moved or 

handled manually (Finding No. 8, supra)~ 

The first event involved a Commission decision in the Matter of 

Pickards Mather and Company v. MSHA, (Case Nos. 79-MS12 and 79-MS19; 

September 18, 1980) which involved petitions by Hibbing Taconite and Erie 

Mining Company for a modification of the application of § 55.12-14 wherein 

they argued .that their ground-fault system constituted suitable protection 

for employees by other means. These two companies are involved in taconite 

mining similar to the respondent's mining operation, but did not utilize 

identical ground-fault system and testing procedures as that used by this 

respondent. The petitions for modification were denied. Based upon 

testimony he heard at the hearing and the decision in the Pickards Mather 

Case, MSHA inspector James Begley contacted respondent's management in 

September 1980 advising them that he intended to start issuing citations if 

he saw:miners moving cable without wearing proper gloves (Tr. Vol. , p. 

26). As indicated in the respondent's safety contact, gloves were to be 

provided for the employees, but as stated iri the last paragraph, respondent 

did not feel there was a safety hazard with the present method of handling 

cable (Exhibit B, supra). 

The issue in this case is not whether electricians gloves constitute 

other proper suitable protection as provided in § 55.12-14 for the gloves 

furnished by respondent were not being used by the miners when the citation 

was issued. The sole issue here is whether respondent's ground-fault 

system and the testing procedures constitutes other means of suitable 

protection fo~ persons handling energized cable within the meaning of 

§ 55.12-14. 6/ 

Respondent contends that the trailing cable used at its Minntac Mine 

provides a ground-fault system that provides suitable protection for 

persons as required in § 55.12-14. They point out that the cable is rated 

at 8000 volts whereas the cable usually only carries 4160 volt and that 

each of the three copper phase wires enclosed in the cable is surrounded by 

insulating material with a dialectric strength of 8000 volts surrounded by 

a braided wire mesh in physical contact with two ground wires. Respondent 

argues that if a fault occurs in this cable, or the equipment served by the 

6/ Respondent's Brief, page 5. 

959 
cable, the current would leak to the ground wires, which conduct the 

current back to the meter house where it would trip the circuit breaker 

shutting off the current allegedly preventing an electrical shock. 

Respondent also contends that its four field tests performed on the 

trailing cable whenever it is reconnected to the equipment would reveal any 

fault in the cable and reveal to the electrician testing same, whether the 

cable is intact or damaged and whether the ground fault tripping system is 

working. Respondent further contends that its experience and that of other 

mining operators with similar ground fault systems is such that there have 

been no proven electrically caused injury from manually moving these 

trailing cables while they are energized. 

A careful review of the record in this case shows that, in spite of a 

remarkable history of no proven electrical injuries from handling trailing 

cables, a potential for serious injury or death from such activities is 

present at all times. Phillip Medure, who is an electrician for the 

respondent, testified that the trailing cables at Minntac can be in service 

for periods of time up to nine.years and are exposed to varied weather and 

·operating conditions including extreme hot and cold temperatures, rain and 

snow, and various types of physical abuse including dragging the cable over 

rocks, snow, lying in snow and water and being run over by equipment which 

is a frequent occurrence. Medure stated that when the cable becomes 

damaged, it is usually spliced in the field with either a pipe splice or 

what is termed a 3M splice (Tr. Vol. 1, pages 57 to 64). The evidence is 

clear that the trailing cables can be damaged accidentally including cuts, 

slices and nicks in the rubber type material that encases the copper phase 

wires and ground wires. 

Respondent contends that should the trailing cable be damaged severely 

enough to cause a leak of current, the ground-fault system will provide for 

the circuit breaker to trip cutting off the current. However, respondent's 

argument is based on the fact that the ground wire is intact and that the 

amount of amps to the circuit breaker is at least 5 amps for the circuit 

breaker is set to trip at that level or above. 

I find that the most credible evidence shows that personnel exposure 

to ampres above five milliamps or five one thousands of an ampre can result 

in injury or death (Vol. I, page 119). William Helfrich, an electrical 

engineer experienced in electrical systems in mining testified that the 

ground-fault system incorporated in respondent's trailing cables is 

designed to protect the equipment rather than persons handling the cables. 

I find this evidence along with statements of other witnesses, most 

convincing on this point. James McNamara, respondent's field electrical 

foreman at Minntac testified that it was possible for damage 'to occur to 

the trailing cables due to the adverse conditions to which they are exposed 

and that a person coming in contact with this type of damage could be 

injured (Vol. 2, pages 27 and 28). Frank Erjavec, respondent's General 

Foreman for pit electrical operations, testified that if the system were 

intact, a person touching the shield in the cable would not feel anything 

960 
on an energized cable. However, he agreed that if the system is not 

intact, you could get a leakage of current through the body (Vol. 2, page 

54). Witness Helfrich testified that the shield in the trailing cable is a 

fine wire netting and can become easily broken making it potentially 

dangerous to persons coming in contact with it (Tr •• Vol. I, pages 122 and 

123). . 

Respondent's employee Medura testified that he has experienced 

situations where splices in the cable have pulled apart and the machine 

continues to run and the circuit breaker failed to trip out. Also, once 

during the testing procedure while reconnecting a cable, he found the 

ground wire was not properly connected and the meter showed continuity in 

the wire (Vol. I, pages 62 through 68). Mary Jaskela, a drill laborer for 

respondent, testified that her duties included moving trailing cable for. 

drills. On one occasion, after a cable had been reconnected and tested by 

the electrician, she was told that it was all right to move the cable and 

while she was standing near the cable, felt a hot flash on her leg which 

was caused by a small hole in the cable (Tr. Vol. I, pages 100 to 102). 

These experiences by miners in handling and working around trailing cables 

contradicts the respondent's argument that the ground-fault shielded cable 

and testing system is adequate personnel procedure. Although the history 

for electrical injury in handling trailing cables is remarkable, I find 

that the most credible evidence supports petitioner's contention that the 

potential for serious injury or death always exists unless some further 

precaution.a are taken. The same conclusion was reached in a recent case 

Secretar of Labor, MSHA v. United States Steel Corporation, Docket No. 

WEST 80-58-M April 1982 wherein the Judge affirmed a similar violation of 

§ 55.12-14 stating in part as follows: 

••• that when the energized power cables are moved manually 

the ground fault system is not suitable protection from the 

electrical hazards provided by means other than insulated 

hooks, tongs, ropes, or slings as called for in the cited 

regulation. 

In view of the foregoing, and after careful consideration of all of 

the facts, I find that there is substantial evidence to support a finding 

that the respondent violated 30 C.F.R. § 55.12-14. 

ORDER 

Citation No. 293731 is affirmed. The Notice of Contest in Docket No. 

LAKE 81-77-R is dismissed. Respondent is ordered to pay a civil penalty in 

the sum of $345.00 within 30 days of the date of this decision. 

Virgi • Vail 

Admin" trative Law Judge 

961 
Distribution: 

Peter D. Broitman, Esq. 

Janet M. Graney, Esq. 

Office of the Solicitor 

United States Department of Labor 

230 S. Dearborn Street, Eighth Floor 

Chicago, Illinois 60604 

Louise Q. Symons, Esq. 

United States Steel Corporation 

600 Grant Street 

Pittsburgh, Pennsylvania 15230 

962 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ROGER D. ANDERSON, 

v. 

ITMANN COAL COMPANY, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 281982 

Complaint of Discrimination 

Complainant 

Docket No. WEVA 80-73-D 

Itmann No. 3A Mine 

Respondent 

DECISION 

Appearances: F. Alfred Sines, Jr., Esq., for Complainant; 

Jerry F. Palmer, Esq., for Respondent. 

Before: Judge William Fauver 

This proceeding was ·brought by Roger D. Anderson under section 105(c) of 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 891 et seq., for 

an alleged discriminatory discharge. The case was heard in Charleston, 

West Virginia. Both parties were represented by counsel, who have submitted 

their proposed findings, conclusions, and briefs. 

Having considered the contentions of the parties and the record as a 

whole, I find that the preponderance of the reliable, probative, and substantial evidence establishes the following: 

FINDINGS OF FACT 

1. At all pertinent times, Respondent, Itmann Coal Company, operated a 

coal mine known as the Itmann No. 3A Mine in Itmann, West Virginia, which 

produced coal for sales in or substantially affecting interstate commerce. 

The Complainant, Roger D. Anderson, was employed by Respondent as a section 

foreman on the evening shift at the Itmann No. 3A Mine. 

2. Complainant began his employment with the Consolidation Coal Company 

on February 24, 1970, as a coal sampler at the Rowland Coal Preparation Plant. 

On November 18, 1972, he was·promoted to environmental technician and on 

August 1, 1973, to safety coordinator. On January 1, 1974, he was promoted 

to safety inspector and on December 1, 1974, to section foreman. On March 1, 

1975, he rec.eived another promotion to safety inspector and a transfer to the 

Itmann Operations. On February 1, 1977, he became an assistant accident 

investigator. On .July 1, 1978, he was promoted to section foreman at Itmann 

No. 3A mine, which position he held at the time of his discharge on July 30, 

1979. 

963 
3. The 3A mine is a large coal.mine involving approximately 250 

miles of entryways and airways, 30 beltheads; 8 active sections, and 

extensive amount of gob area. 

4. At all pertinent times, Dave Bailey was the mine superintendent at 

the Itmann 3A mine. The Itmann 3A mine ran three shifts: the hootowl (12-8), 

the dayshift (8-4), and the evening shift (4-12). The mine superintendent 

was in overall charge of all three shifts, and had six assistants. These were 

categorized as lead foreman (shift foremen) and assistant foremen. Each shift 

would have one of each and the dayshift lead foreman and his assistant were 

also known as the mine foreman and assistant mine foreman. 

5. On the evening shift on July 29, 1979, Roger Lamastus was the lead 

foreman, Larry Kiser was assistant lead foreman, Mickey _Sizemore was the 

belt foreman, and Complainant was a section foreman. 

6. As section foreman, for about 15 months, Complainant reported to his 

immediate supervisor, Roger Lamastus, lead foreman on the evening shift. 

7. Complainant attended various training classes and courses held by the 

Itmann Coal Company and scored 88 percent or better on various tests and exams 

given by Respondent. Complainant attended a managerial grid school in 1975 in 

Dallas, Texas. This school was sponsored by Respondent and all expenses were 

paid for Complainant for one week. Complainant attended a job safety analysis 

school in Pittsburgh, Pennsylvania, sponsored by the Respondent in which all 

of his expenses were paid. Complainant also attended the Dale Carnagie course 

sponsored by the Consolidation Coal Company. All courses, seminars, and 

schools attended by Complainant were completed without missing any classes or 

failing any exams. 

8. As section foreman, Complainant regularly worked 5 weekdays; every 

other weekend h2 also worked either on Saturday or Sunday. 

9. Weekend duties normally involved preparing the mine to produce coal 

on the next coal producing shift. Usually on Thursday, the lead foreman 

would assign men to report for duty the upcoming weekend. Roger Lamastus and 

his assistant, Larry Kiser, were in charge of assigning weekend duties and 

seeing that they were carried out. Roger Lamastus and his assistant alternated as lead foreman on weekends. 

10. On Thursday, July 26, 1979, Roger Lamastus, evening shift mine 

foreman (4:00 p.m. to 12:00 midnight shift), instructed Mickey Sizemore and 

Complainant to report for weekend duty on the Sund~y shift, July 29 (4:00 p.m. 

to 12:00 midnight). Roger Lamastus had scheduled several UMW employees to 

report for the Saturday shift (4:00 p.m. to 12:00 midnight) to make an equipment move. 

11. On Sunday, Mickey Sizemore and Complainant 7.e~orted to the mine office 

about 3:10 p.m. About 3:30, Complainant picked up the mine fireboss book and 

964 
opened to the last entry in the book, read and countersigned that entry. This· 

was the entry for the 12:01 a.m. to 8:00 a.m. shift on Sunday, July 29. 

Roger Lamastus picked up the mine fireboss book and looked at the last entry, 

but did not sign it. 

12. Minutes later, Lamastus summoned Mickey Sizemore, Complainant and the 

UMW employees around the company's supply truck. Lamastus explained the 

equipment move he and his crew had started on the Saturday evening shift. 

Lamastus drew a diagram in the dust on the truck hood to explain his instructions to Complainant to complete the equipment move. He said it had to be 

finished so that the Sunday, midnight shift could run coal. 

Lamastus then led Complainant to the foremen's room, where he showed him 

on the mine map what had to be done, and to the superintendent's office, 

where he drew on a legal pad to illustrate the configuration of the equipment move. He stressed the importance of doing it correctly so coal could 

be produced on the upcoming midnight shift. 

Shortly after 4:00 p.m., while Complainant was sitting in his buggy, 

Roger Lamastus stepped from the mine office door opening, looked at his 

watch, looked at Complainant, and shouted a.curt order to Complainant 

to get underground. Complainant went underground as directed. 

13. About 7:30 that evening, Foreman Sizemore was notified by the 

dispatcher that James Bowman, MSHA inspector, wanted Sizemore and Complainant 

to come outside the mine. 

Sizemore and Complainant Anderson reached the outside about 7:45 p.m. 

James Bowman, who was waiting for them, directed questions to Complainant, 

because he knew Complainant and did not know Sizemore. He asked Complainant 

how many men were underground. When Complainant replied, "seven or eight," 

Bowman asked whether he was aware that there had not been a preshift examination of the mine in the hours from 8:00 to 4:00. Complainant said he knew 

that, but company policy, and federal regulations to his knowledge, required 

preshift examinations only once every 24 hours on weekends. Inspector Bowman 

then said, "Your mine is now under a 104(d)(2) order, which is under the Act 

an unwarrantable failure closure order." 

At the hearing, Inspector Bowman explained that he questioned the 

foremen as to their knowledge of the lack of a preshift examination in order 

to determine what kind of order should be issued. Complainant's admission was 

an important factor in Bowman's decision to issue an unwarrantable failure 

order. 

14. Complainant called Bobby McBride, dispatcher, and instructed him to 

call the men underground out of the mine. Mickey Sizemore called Roger 

Lamastus to inform him that James Bowman had issued a 104(d)(2) closure 

order. 

965 
While Mickey Sizemore was talking to Roger Lamastus on the phone, 

James Bowman and Complainant discussed their opposing interpretations 

of Part 75.303 of the regulations requiring preshift examinations. 

At about 9:30 p.m., David Bailey, superintendent, arrived at the 

mine and talked to Mi'ckey Sizemore concerning the f ireboss book. 

The following day, Monday, July 30, 1979, David 'Bailey called 

Complainant to his office and gave Complainant a choice of resigning 

or being discharged. Complainant asked, "Why?", and David Bailey 

pointed to the closure order. Complainant said it was not his nature 

to quit. Complainant was discharged on that date. 

DISCUSSION WITH FURTHER FINDINGS 

The MSHA inspector issued the order of withdrawal on Sunday, July 29, 

1979, after examining the preshift books and discovering the mine had been 

last preshifted more than 8 hours before the evening shift, in violation of 

30 C.F.R. § 75.303. 1/ The Complainant and another foreman working that 

shift had been c"Rlled to the surface to speak with the inspector before 

the order was issued. The inspector asked the Complainant if he knew the mine 

had not been preshifted within 8 hours. The Complainant stated that he knew 

that, but that compary policy, and federal regulations, to his knowledge, 

required preshift exeminations only once every 24 hours during weekends. 

Thereupon, the inspector showed Complainant the text of the regulation and 

issued an order. That order, not the subject of this proceeding, reads in 

part: 

A preshift examination was not made within 8 hours immediately preceding the entrance of miners scheduled to work in 

active workings. The section foremen in charge of the mine 

stated that they knew the mine had not been preshift examined 

on the preceding shift. Four other men worked over-time from 

the preceding shift making a total of 11 miners underground on 

the 4:00 p.m. shift, and a preshift was not made. 

Mine management subsequently discharged the Complainant for knowingly 

violating a federal mine safety law, whereupon Complainant filed this action. 

"J:] Section 75.303 provides, in part: 

"(a) Within 3 hours immediately preceding the beginning of any shift, 

and before any miner in such shift enters the active workings of a coal mine, 

certified persons designated by the operator of the mine shall examine such 

workings andany other underground area of the mine designated by the Secretary or his authorized representative * * *· Each such mine examiner shall 

also record the results of his examination with ink or indelible pencil in a 

book approved by the Secretary * * * 

966 
The facts show that the Complainant, the belt foreman, and the supervisory 

shift foreman all believed that company policy required preshift examinations 

of the mine on1y once every 24 hours on weekends. The evidence clearly shows 

that on Sunday, July 29, they acted according to this belief. 

Complainant's supervisor held the same mistaken beliefs concerning the 

regulations requirements and he knew Complainant was unaware that the 8-hour 

inspection rule applied during weekends. These facts were apparently ignored 

by, or not connnunicated to, the company vice presidents who decided to fire 

Complainant for "knowingly" violating a federal mine safety law. 

The result was that management discharged Complainant for conduct which 

in fact was a good faith belief by Complainant and was simply hi~ compliance with 

orders from his immediate supervisor, who received no discipline. If the 

company management discharged Complainant knowing this situation, their action 

was arbitrary and discriminatory. If" they discharged him without knowing this 

situation, they were arbitary, discriminatory, and grossly negligent in 

failing to interview Lamastus and check with other personnel, and examine the 

preshift books, to inve~tigate Complainant's side of the story, which would 

have been borne out by any reasonable investigation into the facts. 

Management's arbitrary treatment of Complainant establishes, by a preponderance of the evidence, that the effective motivation for his discharge was 

Complainant's admission to the inspector in which he stated that he knew the 

mine had not been preshifted within 8 hours. It was this admission that 

contributed to the federal inspector's issua~ce of a closure order. 

Section 105(c)(l) of the Act]:_/ protects miners against discrimination 

for filing or making a safety complaint under the Act, for instituting a 

proceeding under or related to the Act, and for other protected activities. 

The drafters of section 105(c)(l) stated that "(t)he listing of protected 

rights contained in section (105)(c)~l) is intended to be illustrative· 

and not exclusive (and should) be construed expansively to assure that miners 

will not be inhibited in any way in exercising any rights afforded by the 

legislation." S. Rpt. No. 95-181, 95th Cong., 1st Sess. 36 (1977), reprinted 

in Legislative History of the Federal Mine Safety and Health Act of 1977 at 

624 (1978). I find that Complainant's statements to the inspector were 

protected activities under the Act. Complainant made his statements in 

response to a question posed by a federal inspector. He responded truthfully 

and to the best of his knowledge. As such, he was participating in an 

investigation of mine safety with a federal inspector, actions which fall 

under the prot~ction of the Act. £!: Pace· v. Consolidation Coal Company, 

3 FMSHRC 176 (January 13, 1981). I therefore find that the Complainant was 

engaged in activities protected by section 105(c). 

J:../ Quoted on p. 7 

967 
To find otherwise would frustrate the purposes of the Act. Miners in 

positions similar to Complainant's would be encouraged not to cooperate with 

safety inspectors, thereby creating danger for themselves and other miners, 

if they knew they could be discharged for their statements. The government's 

investigative functions would be severely impaired and the policy of the Act 

would be thwarted. 

Complainant engaged in protected activities and those activities were an 

effective or substantial motive for his discharge. His discharge was 

therefore discriminatory, in violation of section lOS(c) of the Act. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdictfon over the parties and subject of 

this proceeding. 

2. Respondent violated section lOS(c)(l) of the Act by a discriminatory 

discharge of Complainant, as found above. 

3. Complainant is entitled to reinstatement, back pay with 12 percent 

interest, attorney's fee, and other reasonable costs of prosecuting his 

complaint herein, and other relief to be specified in a .final order. 

PENDING A FINAL ORDER 

Pending a final order, counsel for the parties are directed to confer in 

an effort to stipulate the amount of back pay, interest, attorney's fee, and 

costs due Complainant under this decision, and to stipulate the other terms 

of a proposed final order. 

If counsel are unable to stipulate as to any particular point, counsel 

for Complainant should file a proposed final order and Respondent shall be 

granted leave to reply to it and, if necessary and appropriate, a further 

evidentiary hearing will be held on issues of material fact bearing on 

the relief to be accorded to the Complainant. 

Accordingly, counsel for Complainant should file herein, not later than 

30 days from receipt of this decision, either (1) a joint proposed final 

order or (2) his own proposed final order with an explanation of issues 

existing between the parties as to such order. 

f))~~v~ WILLIAM FAUVER, JUDGE 

968 
Distribution Certified Mail: 

F. Alfred Sines, Jr., Esq., Anderson & Sines, Drawer 1459, Beckley, 

WV 25801 

Jerry F. Palmer, Esq., Itmann Coal Company, 1800 Washington Road, 

Pittsburgh, PA 15241 

];./ Sectiop 105(c(l) of the Act provides: 

(c) (1) No person shall disch·arge or in any manner discriminate against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal or other mine subject to this 

Act because such miner, representative of miners or applicant 

for employment has filed or made a complaint under or related to this Act, including a complaint notifying the operator or 

the operator's agent, or the representative of the miners at 

the coal or other mine of an alleged danger or safety or health 

violation in a coal or other mine, or because such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential transfer μnder 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. 

969 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR MAY 281982 5203 LEESBURG PIKE. 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of JOSEPH PASTINE 

Applicant 

v •. 

FAIRFAX TRUCKING COMPANY, 

Respondent 

Complaint of Discharge 

Discrimination or Interference 

Docket No: WEVA 81-393-D 

MORG CD 81-16 

Susan No. 1 Mine 

ORDER GRANTING MOTION TO WITHDRAW 

MSHA, with the consent of Mr. Pastine, has moved to withdraw its 

complaint of discrimination that it filed on Mr. Pas tine's behalf. Its 

reason for filing the motion is that subsequent investigation has indicated 

that there was no violation. 

MSHA has stated that its position is that Mr. Pastine should be 

able to file his own complaint under Section 105(c)(3) of the Act within 

30 days after the case is dismissed if he chooses to do so. The Act, 

however, does not address the situation where the government files an 

action on a miner's behalf and later changes its mind and obtains a 

dismissal of the case. The government's proposition is equitable, 

however, and if Mr. Pastine should choose to file an action on his own 

behalf he would certainly have an argueable position. But I do not see 

that any ruling that I might make in the instant case could have any 

effect on a case he might file in the future. 

The Motion to withdraw is granted and the case is dismissed. 

Distribution: By Certified Mail 

~C/J?~~- charles C. Moore, Jr., 

Administrative Law Judge 

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

Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia, 

PA 19104 

Harry A. Smith, III, Esq., Counsel for Fairfax Trucking Company, 

P.0.B. 1905, Elkins, WV 25241 

James G. Polino, President, Fairfax Trucking Co., P.O.B. 230, 

Elkins, WV 26241 

970 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

-HAY 281982 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 82-29 

Petitioner A.C. No. 36-00970-03111 

v. 

Maple Creek No. 1 Mine 

U.S. STEEL MINING COMPANY,INC.: 

Appearances: 

Before: 

Respondent 

DECISION AND ORDER OF DISMISSAL 

David Bush, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for·Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, for Respondent. 

Judge .Melick 

This case is before me upon a petition for assessment 

of civil penalty under section llO(a) of the Federal Mine 

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

"Act", in which the Secretary has proposed a penalty for an 

alleged violation on September 17, 1981, of a mandatory 

safety standard. The Secretary's petition was filed on 

January 6, 1982, and was answered by the U.S. Steel Mining 

Company, Inc., (U.S.Steel) on January 18, 1982. Notice was 

issued on February 24, 1982, scheduling hearings to commence 

on May 3, 1982. An amended notice was issued on April 6, 

1982, rescheduling the hearings for May 4, 1982. 

The Secretary's case-in-chief was purportedly to be 

presented at.hearing through the testimony of an MSHA inspector. The inspector proceeded to testify, however, about 

a citation unrelated to the case at bar (Citation No. 1145239 

issued March 31, 1982). After discovering his error, the 

inspector conceded that he was unable to recall the facts 

relating to the citation at issue in this case. Counsel for 

the Secretary explained that the two citations charged 

violations of the same standard and the factual allegations 

in each were similar. He further preferred that, inexplicably, the citations became mixed up during prehearing 

preparations. 

Under the circumstances_, I granted a recess to permit 

the inspector to contact his off ice to locate his notes for 

the purpose of refreshing his recollection about the citation at issue. Although it was made clear that at least an 

971 
hour's recess would be granted for this purpose, it appears 

that no effort was made to search for the notes and no 

explanation given except that "it would.be impossible [to 

locate the notes] unless [the inspector himself] was present." Counsel for the Secretary thereupon conceded that he 

was unable to present any evidence to support his case and 

requested a further continuance for an unspecified time. 

In deciding that no further continuance was warranted, 

I considered: (1) that more than 60 days notice of hearing 

was provided the Secretary, giving him ample opportunity to 

prepare his case, (2) that the Secretary was particularly 

negligent in the preparation of this case, s~nce the citation about which the inspector was prepared to testify had 

not even been issued at the time the hearing was scheduled 

and had been issued only shortly before the actual hearing, 

(3) that once his error was known, the Secretary showed a 

lack of good faith in failing to ·conduct a search for the 

inspector's notes (to refresh the inspector's recollection 

of the citation at issue) during a continuance granted 

specifically for that purpose, (4) that significant expenditures in time and money had been incurred as a result of 

the scheduled hearing and that additional such expenditures 

would be incurred by any further continuance of the proceedings, (5) that there were no assurances that even after 

a further continuance, the Secretary would be any better 

prepared to present his case, and (6) that the operator was 

prepared for hearing with two staff attorneys and six witnesses present. 

The bench decision denying the Secretary's request for 

an additional continuance and dismissing the case for lack 

of evidence is affirmed at this Accordingly, Citation 

No. 1050294 is VACATED and this ISMISSED. 

Distribution: By cer· fied 

Louise Q. Symons, Esq 

Grant Street, Pittsbu 

Law Judge 

Steel Corporation, 600 

David Bush, Esq., Office of the Solicitor, U.S. Department 

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

Philadelphia, PA 19104 

972 

*U.S. GOVERNMENT PRINTING OFFICE: 1982-0-J61-6J8/4J7.l