January 1982 

Commission Decisions 

01-06-82 SOL & MSHA ex rel Bobby Gooslin v. Kentucky KENT 80-145-D 

Carbon Corp. 

01-07-82 Oliver M. Elam, Jr., Co. VINC 78-447-P 

01-22-82 Carroll D. Tenney v. Eastern Associated Coal WEVA 80-279-D 

Administrative Law Judge Decisions 

01-05-82 Roy Glenn, Employed by Climax Molybdenum Co. WEST 80-158-M 

01-05-82 Lopez Redi Mix Co. WEST 80-164-M 

01-07-82 Ozark Lead Co. CENT 81-102-M 

01-07-82 Colorado Westmoreland, Inc. WEST 79-391 

01-11-82 Gerald D. Boone v. Rebel Coal Co. WEVA 80-532-D 

01-13-82 Hayward Ready Mix Co., Inc. LAKE 80-74-M 

01-13-82 Logan-Mohawk Coal Co. and H.M.N. & S Coal Co.WEVA 81-24 

01-18-82 Consolidation Coal Co. PENN 81-106-R 

01-19-82 Potash Company of America, Ideal Industries CENT 81-210-M 

01~19-82 Southern Ohio Coal Co. WEVA 80-45 

01-21-82 Kaiser Cement Corp. CENT 80-306-M 

01-22-82 SOL & MSHA ex rel Daniel G. Jenkins & Thomas 

S. Perry v. Kaiser Cement Corp. WEST 80-463-DM 

01-27-82. Scotia Coal Co. BARB 78-609-P 

01-27-82 Consolidation Coal Co. WEVA 81-368 

01-28-82 Valley Rock & Sand Corp. WEST 80-3-M 

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Commission Decisions 
JANUARY 

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

Western Steel Corporation v. Secretary of Labor, MSHA, Docket No. WEST 81-132-RM. 

(Judge Morris, November 27, 1981) 

Secretary of Labor, MSHA v. Old Dominion Power Company, Docket Nos., VA 81-40-R, 

VA 81-65. (Judge Steffey, November 30, 1981) 

Secretary of Labor, MSHA v. White Pine Copper Division, Docket Nos. LAKE 81-106-RM, 

LAKE 81-171-M. (Judge Laurenson, December 1, 1981) 

Review was Denied in the following case during the month of January: 

Marlene Finn v. Brown Badgett, Inc., Docket No. KENT 81-167-D. (Judge Fauver, 

Default Decision of November 21, 1981) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

On Behalf of 

BOBBY GOOSLIN 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January. 6, 1982 

Docket No. KENT 80-145-D 

KENTUCKY CARBON CORPORATION 

DECISION 

This case arises under section 105(c)(2) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et~· (Supp III 1979), and 

involves the single issue of a miner's entitlement to monetary relief 

for a discriminatory discharge by an operator. ];./ The administrative 

law judge concluded that Kentucky Carbon Corporation had discharged the 

complainant, Bobby Gooslin, in violation of the 1977 Mine Act. He 

ordered the company to rehire and reinstate Gooslin to his former 

position with full seniority rights. ]:_/ The judge denied Gooslin's 

l/ Section 105(c)(2) provides in pertinent part: 

The Commission shall have authority ••• to require a person 

committing a violation of this subsection to take such'affirmative 

action to abate the violation as the Connnission deems, appropriate, 

including, but not limited to, the rehiring or reinstatement of the 

miner to his former position with back pay and interest. 

2/ We previously considered another aspect of Gooslinvs complaint. 

After Gooslin filed his initial claim of unlawful discrimination, the 

Secretary~ pursuant to section 105(c)(2), applied to temporarily reinstate Gooslin pending a final determination on the merits of Gooslin's 

complaint. The application for temporary reinstatement was granted. 

Kentucky Carbon sought review of the reinstatement order, claiming that 

the procedural rule which governed the temporary reinstatement proceeding denied it due process. We granted Kentucky Carbon's petit1on 

for review of the reinstatement order but specifically stated that 

proceedings on the discrimination complaint were not suspended. Two 

weeks later the judge issued his decision on the merits finding that 

Kentucky Carbon discriminatorily discharged Gooslin. Kentucky Carbon 

did not seek review of this finding and it became final by operation of 

law. Subsequently, in the proceeding reviewing the temporary reinstatement order, we found that our temporary reinstatement rule did not 

afford due process. Accordingly, we vacated the order. We noted, 

however, that in view of the judge's decision on the merits and the 

company's failure to seek review thereof, a remand was unnecessary. 

Kentucky Carbon Corp., 3 FMSHRC 1707, 1712 (1981). 

1 82-1-5 
claim for back pay, interest, or other monetary benefits. He found that 

Gooslin had failed to present any evidence to support his claim for such 

relief and, therefore, that Gooslin had "abandoned" the claim. Kentucky 

Carbon Corp., 3 FMSHRC 640, 662-663 (ALJ 1981). We granted the petition 

for discretionary review of the United Mine Workers of America. ]_/ The 

petition raised only the issue of whether the judge properly denied 

monetary relief. Ken.tucky Carbon did not file a brief on review in 

opposition to the claim for monetary relief. For the reasons that 

follow, we hold that the judge erred in finding that Gooslin 

abandoned his claim. 

The Mine Act's discrimination provision was intended to provide 

protection to miners similar to that in exist federal labor 

statutes.!!._/ See Glenn Munsey v. Smitty Baker Coal Co., Inc., 2 FMSHRC 

3463, 3465 (1980), (construing analogous provision in Federal Coal Mine 

Health and Act of 1969). The purpose of awarding monetary relief 

is two-fold: to further the purposes of the Act by deterring retaliatory 

actions, and to put an employee into the financial position he would 

have been in but for the discrimination. NLRB v. Mastro Plastics Corp., 

354 F.2d 170, 175 (2d Cir. 1965), cert. den., 384 U.S. 972 (1966). A 

finding of discriminatory discharge 11 is presumptive proof that some back 

pay i.s owed by the employer." Mastro Plastics, 354 F .2d at 178. "Unless 

compelling reasons point to the contrary, the full measure of relief 

should be granted to [an improperly] discharged employee." Goldberg v. 

Barna Mfg. Corp., 302 F.2d 152, 156 (5th Cir. 1962). 

The central purpose of the Mine Act is to promote safety and 

health among the nation 1 s miners. To accomplish that goal it is 

essential that miners be encouraged to report unsafe conditions free 

from the threat of retaliation and subsequent economic loss. Thus, we 

are persuaded that upon a finding of discrimination, a pres\lmption of 

the right to monetary relief arises and such relief should be denied 

only where "compelling reasons" otherwise dictate. Moreover, if monetary 

Yelief is denied, the bases for the failure to make the aggrieved party 

whole must be articulated. 

Although the union was not originally a to the proceeding, 

it entered an appearance prior to the hearing on the merits and subsequently Gooslin. 

!:±_/ E.g., section lO(c) of the National Labor Relations Act (as amended), 

29 U.S.C, § 160(c)(1976) (NLRA), and sections 15(a)(3) and 16(c) of the 

Fair Labor Standards Act, 29 U.S.C. §§ 215(a)(3), 216(c)(l976) (FLSA). 

2 
In this case, the presumption in favor of monetary relief was not 

rebutted, nor did the judge articulate compelling reasons for his denial 

of such relief. The judge stated that Gooslin failed to present evidence 

in support of the requested monetary relief. Gooslin established that 

he was discharged because of unlawful discrimination, that the 

discharge resulted in monetary loss, and requested various types of 

monetary relief. In the circumstances of this case, we conclude that 

the j erred in failing to determine what monetary relief, if any, is 

appropriate to make Gooslin whole. 

Accordingly, we reverse that part of the judge's decision in which 

he found that Gooslin had abandoned his claim for monetary relief and 

remand for further proceedings. 

3 
Distribution 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

C. Lynch Christian, III, Esq. 

Jackson, Kelly, Holt & O'Farrell 

P.O. Box 553 

Charleston, West Virginia 25322 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 20036 

W. Timothy Pohl, Esq. 

Kentucky Carbon Corporation 

Suite 1300 

One Valley Square 

Cha~leston, West Virginia 25301 

Mary Lu Jordan, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge James Laurenson 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

4 
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 

January 7, 1982 

Docket Nos. VINC 78-447-P 

79-12-P 

79-40-P. 

79-176-P 

79-177-P 

79-231-P 

OLIVER M. ELAM, JR., COMPANY LAKE 79-11 

79-110 

79-281 

DECISION 

This case involves several alleged violations of mandatory standards 

under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

(Supp. III 1979). The sole issue before us is whether the facility 

operated by Oliver M. Elam, Jr., Company ("Elam") is a "mine" subject to 

the Act. The judge held that it is not. :!./ We affirm. 

Elam owns and operates a commercial dock on the Ohio River. It 

also owns, for the purpose of leasing to others, approximately 50 

pieces of construction equipment such as cranes, trucks, and bulldozers. 

Elam employs eleven persons who work interchangeably at both the dock 

and equipment rental operation. Usually three employees work at the dock 

when it is in use. At the dock facility, steel, ingot cars, pipe, tar 

pitch and coal are loaded onto barges; steel and slag are also unloaded. 

About 40 percent to 60 percent of the tonnage loaded at the dock is 

attributable to coal. 2 

Among Elam1 s customers are some four or five coal brokers who pay 

Elam to load coal onto barges at the dock. The brokers, who are not 

mine operators, arrange for delivery of the coal by truck to the dock, 

and then for delivery by barge to their customers. ll Elam's facilities 

for loading coal consist of a hopper, a crusher, and conveyor belts. 

The coal is first delivered to and stockpiled on Elam's property. The 

brokers 1 employees then weigh the coal and place it in the hopper. 

The judges decision is reported at 3 FMSHRC 161 (1981). 

Elam loaded approximately 300,000 tons of coal onto commercial 

barges in 1978. During 1979, coal loading dropped to about 1,500 tons 

ever six weeks,_!_.~·· approximately 13,500 tons per year. 

ll Elam does not mine coal, nor does it or any of its stockholders or 

officers own any mineral interest. It has no business arrangements, 

contracts, or dealings directly with the coal mine operators who 

initially extract the coal, nor does it have any contractual arrangements with the customers who ultimately accept delivery of the coal off 

the barges. 

5 
Occasionally, large pieces of coal must be broken by Elam's employees in 

order to pass through the hopper. From the hopper a conveyor carries 

the coal to an American Ring crusher where it is broken into essentially 

one size. The crusher cannot be adjusted for variable sizing and has 

no grates to sort the crushed coal. Crushing is done because the 

conveyor belts are covered and cannot always accomodate large pieces of 

coal; crushing therefore increases the ease of loading, and enables a 

larger amount of the same to be placed in a given space on the barges. 

From the crusher another conveyor carries the coal to the barges. 

Occasionally the crusher is by-passed and coal is loaded directly onto 

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

Elam does not prepare coal to market specifications or for particular 

uses, nor does it separate waste from coal or add any material to it. 

Thus, all of Elam's activities with respect to coal relate solely to 

loading it for shipment. 

Section 4 of the 1977 Mine Act states: 

Each coal or other mine, the products of which enter 

commerce ••. shall be subject to the provisions of 

this Act. 

30 U.S.C. § 803. Section 3(h)(l) of the Act defines "coal or other mine" in 

part as: 

(C) lands, ••• structures, facilities, equipment, machines, 

tools, or other property .•. used in, or to be used in, or 

resulting from ... the work of preparing coal or other minerals, and includes custom coal preparation facilities. 

30 U.S.C. § 802(h)(l)(C). The question in this case is whether Elam's 

loading operation constitutes the "work of preparing the coalu, and, 

therefore, is a "mine." Section 3(i) of the Act provides: 

il[W]ork of preparing the coal" means the breaking, 

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

storing, and loading of bituminous coal, lignite, or 

anthracite, and such other work of preparing such coal 

as is usually done by the operator of the coal mine. 

30 u.s.c. § 802(i). 

The legislative history of the 1977 Mine Act indicates that a broad 

interpretation is to be applied to the Act's expansive definition of a 

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

Senate Subcommittee on Labor and Human Resources, 95th Cong., 2d Sess., 

Legislative History of the Federal Mine Safety and Health Act of 1977, 

at 602. also Marshall v. Stoudes Ferry Preparation Co., 602 F.2d 

589 (3d Cir. 1979),.cert. denied, 444 U.S. 1015 (1980). While we 

acknowledge the inclusive nature of the coverage of the Act, we do not 

find Elam's activities to be covered. 

6 
The 1977 Mine Act's definition of coal preparation was taken unchanged from section 3(i) of the 1969 Coal Act, 30 U.S.C. § 802(i) 

(1976). The 1969 Coal Act's defirrition, in turn, was updated from the 

1952 Coal Act. The 1952 Act in part provided: 

The term 'mine' means an area of land including 

everything annexed to it by nature and all structures, 

machinery, tools, equipment and other property, real or 

personal, placed upon, under or above its surface by 

man, used in the work of extracting bituminous coal, 

lignite or anthracite, from its natural deposits in the 

earth in such area and in the work of processing the 

coal so extracted. The term 'mine' does not include 

any strip mine. 

The term 'work of processing the coal' as used 

in this paragraph means the sizing, cleaning, drying, 

mixing and crushing of bituminous coal, lignite or 

anthracite, and such other work of processing such 

coal as is usually done by the operator, and does 

not mean crushing, coking, or distillation of such 

coal or such other work of processing such coal as 

is usually done by a consumer or others in connection 

with the utilization of such coal 

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

In the 1969 Coal Act's definition of coal preparation the word 

"preparing" replaced "processing", and the qualifying phrase "and does 

not mean crushing, coking, or distillation of such coal or such other 

work of processing such coal as is usually done by a consumer ••• "was 

deleted. The phrase "and includes custom coal preparation facilities" 

was added to the definition of coal mine, and "breaking'', "washing", 11storing", and "loading11 were added to the definition of the work 

preparing coal. 

Although the legislative history of the 1969 Coal Act sheds no 

light on the reasons for the 1969 Act's modification of the 1952 Act's 

definition, 4/ we find it significant that the types of activities 

comprising "the work of preparing the coal" have consistently been 

categorized as "work •.. usually done by the op~rator." Thus, inherent 

in the determination of whether an operation properly is classified as 

"mining" is an inquiry not only into whether the operation performs one 

or more of the listed work activities, but also into the nature of the 

operation performing such activities. In Elam's operations,simply 

because it in some manner handles coal does not mean that it automatically is a "mine" subject to the Act. 

!!_/ Of the many bills introduced at the time the 1969 Coal Act was 

being considered, two retained the language of the 1952 Coal Act 

pertaining to processing done by consumers and others in connection 

with the use of coal.. The other bills substituted the language 

that eventually was included in the 1969 Coal Act. No explanation 

for the differing versions is provided in the legislative history. 

In any event, we do not read the relevant language of either version 

to differ substantively, nor, apparently, does the Secretary. Brief 

at 11. 

7 
Rather, as used in section 3(h) and as defined in section 3(i), 

"work of preparing coal" connotes a process, usually performed by the 

mine operator engaged in the extraction of the coal or by custom preparation facilities, undertaken to make coal suitable for a particular 

use or to meet market specifications. 5/ In the present case, although 

Elam performs several of the functions-included in the 1977 Act's 

definition of coal preparation (i_. £_., storing, breaking, crushing, and 

loading), it does so solely to facilitate its loading business and not 

to meet customers' specifications nor to render the coal fit for any 

particular use. We therefore conclude that Elam's facility is not a 

"mine" subject to the coverage of the 1977 Mine Act. 

Accordingly, the decision of the administrative law judge is 

affirmed. 

A. E. i.aw~ iSSioner 

ii See 9 9 the following descriptions of coal preparation: 

Purpose of coal preparation is to increase the value of fuel by 

making it more suitable for uses of the consumer. This is done by: 

(a) screening or sizing; (b) mixing or blending; (c) cleaning. By 

combining any 2 or all of these methods, coal can be prepared to 

-standard specifications. A preparation plant should produce ""clean 

coal, and refuse free of saleable coal. 

R. Peele, ed., Mining Engineers 1 Handbook, Vol. II, at 35-02 (3rd ed. 

1941). Also.: 

coal preparation. a. A collective term for physical and mechanical processes applied to coal to make it suitable for a particular use. 

preparation. a. Treatment of ore or coal to reject waste •.•• 

b. The process of preparing run-of-mine coal to meet market specifications by washing and sizing. 

Bureau of Mines, U.S. Department of Interior, A Dictionary of Mining, 

Mineral, and Related Terms 226, 859 (1968). 

8 
Distribution 

Linda Leasure, Esq, 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

William H. Jones, Esq. 

1416 Winchester Avenue 

Ashland, Kentucky 41101 

Administrative Law Judge Michael Lasher 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

9 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

CARROLL D. TENNEY, 

Complainant 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 12, 1982 

Docket No. WEVA 80-279-D 

EASTERN ASSOCIATED COAL CORPORATION, 

Respondent 

ORDER 

The petition filed on behalf of Carroll D. Tenney on January 5, 

1982, which seeks review of a judge's decision issued on November 27, 

1981, is dismissed as untimely. 30 U.S.C. 113(d)(2)(A)(i); 30 C.F.R. 

2700.70(a). 

10 82-1-:11 
Distribution 

Jay Montgomery Brown, Esq. 

515 Deveny Building 

P.O. Box 269 

Fairmont, West Virginia 26554 

Mr. Carroll D. Tenney 

Route 1, Box 172-A 

Fairview, West Virginia 26570 

Sally s. Rock, Esq. 

Eastern Associated Coal Corporation 

1728 Koppers Building 

Pittsburgh, PA 15219 

R. Henry Moore, Esq. 

Rose, Schmidt, Dixon & Hasley 

900 Oliver Building 

Pittsburgh, PA 15222 

Administrative Law Judge Michael Lasher 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

11 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 

SECRETARY OF LAROR, MINE SAFETY AND 

.HEALTH ADMINISTRATION (MSHA), 

Jl\N 5 \981 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PF.NALTY PROCEEDING 

Petit inner, 

v. 

ROY GLENN, Employed by, and Agent of 

CLIMAX MOLYBDENUM COMP.ANY, 

Respondent. 

DECISION 

Appearances: 

DOCKET NO. WEST 80-158-M 

MSHA CASE NO. 05-02337-05017 A 

MINE: Climax Mill & Crusher 

J, Philip Smith, Esq., Office of the Solicitor 

Unfted States Department of Labor 

4015 Wilson Boulevard, Arlington, Virginia 22203 

For the Petitioner 

Edward H. Sherman, Esq., Sherman & Sherman 

1130 Capitol Life Center, 16th at Grant Streets 

Denver, Colorado 80203 

For the Respondent 

Before: Judge John J. Morris 

Statement of the Case 

The Secretary of Labor of the United States, the individual charged 

with the statutory duty of enforcing the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq., (the Act) charges Roy Glenn with a 

violation of Section llO(CJ ~the Act. 

Section llO(c) now codified at 30 U.S.C.§ 820(c) provides, 1n part, 

as follows: 

Whenever a corporate operator violates a mandatory health 

or safety standard ... any director, officer, or agent of such 

corporation who knowingly authorized, ordered, or carried out 

such v i o 1 at ion . . . sh a 11 be subj e ct to the same c iv i l penal t i e s , 

fine, and imprisonment that may be imposed upon a person under 

subsections (a) and (d). 

13 
The Secretary alleges that Glenn, as an agent ·if Climax i·lolybdenurn 

Company, (Climax), knowingly authorized, ordered, or carried out a 

violation of the mandatory safety standard set forth in 30 C.F.R. § 

57.15-5. The relevant portions of this standard are as follows: 

Mandatory. Safety belts and lines shall be worn when 

men work where there is danger of falling .•. 

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

Littleton, Colorado. The parties filed post-trial briefs. 

Issues 

Two preliminary issues raised by the respondent must be addressed 

before discussing the merits of the case. The first is whether section 

llO(c) of the Act violates the equal protection clause of the United States 

Constitution. The second question is whether the violation charged arose 

only from the actions of John Payne or whether the actions of Ronald 

Robinson and Chris Martinez are also to be considered. 

The merits of the case present three issues for consideration. The 

threshold sue is whether there was a violation of 30 C.F.R. § 57.15-5. 

If there was, the next question is whether Glenn knowingly authorized, 

ordered, or carried out such violation. If Glenn is found to have done so, 

the final issue concerns the assessment of an appropriate penalty. 

Applicable Case Law 

In Secretary of Labor v. Kenny Richardson, 3 FMSHRC 8 (1981), the 

Commission held section llO(c) to be constitutional and enunciated the 

critical elements which constitute a violation of this section. The 

corporate operator must first be found to have violated the Act. Further, 

if a person) such as a shift boss, is in a position to protect an 

employee's safety and health and if he fails to act on the basis of 

information that gives him knowledge or the reason to know of the existence 

of a violative condition he has acted knowingly and in a manner contrary to 

the remedial nature of the statute. 

Preliminary Issues 

The constitutional issue raised by respondent in his motion to dismiss 

was decided by the Commission in Kenny Richardson. In applying the 

rational relationship test, the Commission held that the classification in 

section 109(c) of the 1969 Coal Act (identical to section llO(c) of the 

1977 Act) is rationally related to the purposes of the Act and, therefore, 

is constitutional. 

14 
The expressed fundamental purpose of the 1969 Coal Act 

is to "protect the heal th and safety of the Nation 1 s 

coal miners." 30 U.S.C. § 801 (1976).. Section 109C:) 

is intended to provide one vehicle for accomplishing 

th purpose by holding·corporate agents who commit 

knowing violations individually liable. We believe 

that imposing personal liability on corporate agents 

furthers the overall goal of the Act by providing an 

additional deterrent to many of those individuals in 

a position to achieve compliance. Kenny Richardson, 

supra at 25. 

The Commission recognized that much of the reasoning for placing 

individual liability on corporate agents would also be applicable to agents 

of non-corporate operators. However, consistent with the rubric enunciated 

by the U.S. Supreme Court in Williamson v. Lee Optical 348 U.S~ 483 (1955) 

the Commission held that Congress may take one step at a time in remedying 

the problem of protecting the health and safety of miners. They followed 

the general rule of law that legislation to be overturned on the grounds 

that it denies equal protect ion of the law only where "the varying 

treatment of different groups or persons is so unrelated to the achievement 

of any combination of legitimate purposes that we can only conclude that 

the legislature's actions were irrational." Vance v. Bradley, 440 U.S. 93, 

95...,97(1979). 

Section llO(c) has a legitimate purpose in providing a means of 

encouraging officers, directors and agents of a corporation to actively 

promote compliance with the mandatory standards. The fact that individuals 

in comparable positions who are employed by sole proprietors or partnerships are irrnnune from personal liability does not render this section unconstitutional. 

Another argument raised hy respondent is that the merits of th case 

involve only the actions of one miner, John Payne, and not the actions of 

the other two miners who were on the girder at the time of the incident in 

question. The citation itself reads as follows: 

Three welders were observed working on an oxygen line 

about 30 feet off of the ground. One of them was observed walking a distance of about 30 feet on a steel 

girder without a safety line hooked up. Roy Glenn, 

shift boss, was directing the work from below. 

To abate the citation the following action was taken: 

Lift truck was brought in to take the other two welders 

down in a safe way. The work was completed with the use 

of the lift truck. 

At trial, the MSHA inspector, Richard King, testified that at the time 

the citation was written his only concern was with regard to the action of 

Payne (Tr. 58-68). However, a subsequent investigation revealed that the 

other two miners, Ronald Robinson and Chris Martinez, got to the area where 

they were welding in the same manner aa Payne (Tr. 25). 

15 
The Act provides that "each cit at ion· ... sh al 1 describe 'vith 

particularity the nature of t~e violation, includin~ a reference to the 

provision of the Act, standard, rule, regulation or order alleged to hav~ 

been violated." 30 U.S.C. § 814(a). In construing a similar requirement 

in the Federal Coal Mine Health and Safety Act of 1969, the predecessor of 

the present Act, the Cormnission held that even if a notice is insufficiently speci , that defect alone would not render the notice invalid. 

Secretary of Labor v. Jim Walter Resource$, Inc., 1 MSHC 2233 (1979). The 

Commission construed the requirement for specificity as follows: 

The primary reasons compelling the statutory mandate of 

specificity is for the purpose of enabling the operator 

to be properly advisP.d so that corrections can be made 

to insure safety and to allow adequate preparations for 

any potential hearing on the matter. Jim Walter Resources, 

Inc. supra at 2234 . 

. Here, as in the case referred to above, the respondent did not claim 

any difficulty irt being able to identify and thereby abate the allegedly 

violative condition. Nor did Glenn contend that the notice prevented him 

from preparing a proper defense. The cit at ion and not ice of abatement 

apprised Glenn of the standard violated, the miners observed by the 

inspector and that Glenn was directinP, the work of the miners. For the 

reasons stated above, I deem the citation .to have been sufficient notice of 

the all~gedly violative actions of Robinson and Martinez, as well as 

Payne. 

1. On January 5, 1979, 

supervisor since June 1976. 

21 years (Tr 259, 288). 

Findings of Fact 

Roy Glenn was the shift boss. He had been a 

He had been a welder and a Climax employee for 

2. On the date of this incident Glenn was supervising a crew of ten 

miners including John Payne, Chris Martinez and Ronald Robinson (Tr. 263, 

266). 

3. Around noon Glenn instructed Martinez and Robinson to go up on a 

girder and to prepare to start to weld a valve on an oxygen line (Tr. 228, 

267). 

4. At the same time Glenn instructed Payne t~ open and bleed all of 

the oxygen valves which were three feet from the floor (Tr. 116, 271). 

5. After assigning tasks to his crew, Glenn went around the hack of 

the crusher and began checking the valves to make sure they'd been opened. 

Glenn considered this to be important because he didn't want to cut in on a 

line while it was under pressure (Tr. 272). 

16 
6. The oxygen line Martine;:: and Robinson were to work on was located 

next to a girder which was 20 feet above the floor. The girder was 20 1/2 

inches wide and 15 feet long with 5-6 inch open spaces along its surfac~. 

BE>low the girder was a concrete floor with heavy eq11ipment and various 

large objects in the area (Tr. 22-24, 287). 

7. There were two ways to reach the area where the welding was to be 

done. There was a 20 foot ext ens ion ladder on the screen floor which was 

40-50 feet away on another deck (Tr. 243, 269, 286). An alternative means, 

was to go up a staircase, get onto the girder and walk across the girder 

(Tr. 237, 269, 289). 

8. Robinson had used the ladder on occasion to get up to the girder 

(Tr. 243). 

9. On January 5, 1979, Robinson and Martinez walked 10-12 feet across 

the girder to reach the oxygen line (Tr. 230). They had safety belts on 

while walking on the girder, but the belts weren't hooked onto anything 

because there was no cable where they could tie off (Tr. 231, 287). 

10. There were no handrails alongside of the girder (Tr. 24, 120). 

11. Once they reached the oxygen line, Robinson and Martinez tied off 

their safety lines to an air line (Tr. 242, 252). · 

12. Glenn did not tell Robinson and Martinez how to get up to the 

oxygen line. At the time, he did not think about how they were going to 

get up to the area (Tr. 235, 251, 269, 270, 289). 

13. Glenn was familiar with the construction of the girder (Tr. 295). 

14. Glenn knew Rohinson and Martinez were very experienced in 

climbing. Additionally, Robinson was a first class welder and Martinez was 

a first class mechanic. Robinson had worked on Glenn's crew since October 

1974 (Tr, 251, 268, 289), 

15. Martinez and Robinson had worked on a girder many times prior to 

the incident in question (Tr. 271). 

16. Glenn relied on Martinez and Robinson to complete their assigned 

task safely (Tr. 263, 269, 270, 295). 

17. Glenn had told his crew that morning to take their safety line 

with them (Tr. 241). 

18. Payne also went up onto the girder to see if he could help 

Robinson and Martinez. He did not use his sa belt (Tr. 119, 131). 

Glenn did not instruct or authorize him to go up on the girder (Tr. 119, 

131, 133, 273-276, 281). 

19. Payne got halfway across the rder when he saw Glenn waving at 

him with a flashlight and indicating to him to come down. Glenn waved him 

down "because [he] didn't need him up there. 11 (Tr. 133, 134, 280). 

17 
20. In the 21 years Glenn had heen employed h~ Climax he hadn't had 

any lost time accidents involving himself or his ere~ (Ti. 283, 285). 

21. Glenn gave routine instructions in safety precautions to his 

workers, He conducted many "mini-safety meetings" on the spot when a 

particular job was to be done. He'd tell the miners of the hazards and 

problems they might come up against (Tr. 195, 270). 

22. Due to the construction and location of the girder, there was a 

danger that a miner walking on the girder could fall (Tr. 22-24, 287). 

Corporate Violation 

Respondent correctly contends that prior to the determination of the 

agent's liability it must be found that the corporation violated the Act. 

The Commission, in Kenny Richardson, supra, held that due process does not 

require a determination of the mine operator's violation in a proceeding 

separate from or prior to a nroceeding involving the agent. "The 

operator's violation is merely an element of proof in the Secretary's case 

against the agent." Richardson, supra, at 10-11. 

In the present case, it ts undisputed that Payne, Robinson and 

Martinez walked across the girder without the use of a safety belt (Tr. 

119, 231, 287). It is also uncontroverted that there was a danger of 

falling from the girder which was 20 1/2 inches wide and was located 20 

feet above a concrete floor (Tr. 22-24, 287). There is, therefore, no 

question that Payne, Robinson and Martinez failed to comply with 30 CFR 

57.15-5 which requires safety belts to be used when there is a danger of 

falling. 

A mine operator is to be held liable for any violation of the Act 

that occurs at the mine regardless of fault. Sec. o~ Labor v El Paso Rock 

Quarries 2 FMSHRC 1132 (1981). I, therefore, conclude for the purpose of 

this proceeding that Climax Molybdenum violated 30 CFR 57.15-5. 

Contentions of the Parties 

The Secretary contends that Glenn, acting as an agent for Climax, 

authorized Martinez and Robinson to walk across the girder without the 

benefit of safety belts in violation of 30 C.F.R. 57.15-5. Petitioner's 

position is based on the following scenario: Glenn was a shift boss for 

Climax, He supervised a crew of ten miners which included Martinez, 

Robinson and Payne. Glenn was aware of the standard's requirement that 

safety belts be worn where there's a danger of falling. He was also 

familiar with the construction of the girder. He told Robinson and 

Martinez to work on the oxygen line. Glenn knew one way to reach the line 

was to walk across the girder, and he knew that in doing so a miner could 

not use a safety belt. Glenn failed to instruct the miners to use another 

means of getting to the line which would have been safer and in compliance 

with the Act, 

In his post-trial brief, the Secretary admits that Glenn did not 

authorize Payne to go up onto the girder. Payne did so voluntarily without 

the knowledge of Glenn. The actions of Payne, therefore, are not a 

violation of which r;lenn h<ld actual knowledge, nor could he have had 

knowledge of such a violation. 

18 
Glenn maintains that he was not 1n rn a posit ion to have 

prevented the violation. In the alternative, he contends that if he is 

considered to have been an agent, he did not authoriz.e the violation. 

Glenn's argument that he was not an agent is premised on the 

allegation that Glenn 1 s position at the mine was not within the scope of 

the Act's definition of an agent, 30 U.S.C. § 802 (e) .. !/ He was not 

responsible for the operation of all or part of the mine or the supervision 

of miners. Rather, Glenn contends that he had only limited supervision 

over the job to be done. He assigned tasks to members of h crew but did 

not have the power or control over them as an officer or director would. 

Specifically, if he'd been notified of a violation he wouldn't have had the 

power to correct it. Such authority belonged only to an officer or 

director of the corporation. 

Respondent bases his alternative position on the defense that he 

couldn't have foreseen the violative actions of Robinson and Martinez. 

Glenn had instructed them that morning on safety and told them to take. 

their safety belts. He did not tell Martinez and Robinson how to get to 

the area where they were to weld and did not know how they got onto the 

girder. He simply relied on Robinson's and Martinez's experience as a 

first class welder and a first class mechanic, respectively, to perform 

the assigned tasks safely. The two miners could have reached the area 

safely by using a ladder. 

It was not Glenn's practice to give detailed instructions to such 

experienced miners. As he put it, 11 1 don't tell a doctor how to treat me." 

(Tr. 269). However, Glenn maintains that he was conscientious about safety 

as evidenced by the fact that in the twenty-one years he worked for Climax 

neither he nor his crew had had any lost time accidents. Essentially, 

Glenn contends that a supervisor should not be held to be an absolute 

insurer of the conduct of others over whom he had no control. 

Discussion 

On January 5 1 1979, Glenn, in his capacity as a shift boss, was an 

of Climax. He was responsible for the supervision of ten miners on 

his crew. His duties included the instruction of the miners as to safety 

and their assignment to certain tasks. (Tr. 270, 297). This indicates 

that he did more than merely supervise the job to be done. He had some 

control over the act of the miners themselves which brought him within 

the scope of the Actis definit £on of an 11 I accordingly deny 

Glenn 1 s contention that he was not the agent of Climax. 

1/ (e) 11 agent 11 means any person charged with responsibility for the 

operation of all or a part of a coal or other mine or the supervision of 

the miners in a coal or other mine. 

19 
Glenn's liability under section llO(c) for the Actions of Robinson ~nd 

Martinez turns on whether he knew or had reason to k·1ow of the violation 

and whether he had the anthority to prevent the violation. There is no 

evidence to support MSHA' s allegation that Glenn hirnse 1 f carried out the. 

violation or directly ordered the two miners to walk across the girder 

without the benefit of a safety belt. 

Glenn's secondary argument concerns his view that he did not know of 

the violation. The evidence, however, supports MBHA's position that Glenn 

had reason to know that Robinson and Martinez might walk across the girder 

without the use of a safety belt and that there was a danger that they 

could fall. Glenn testified that he was familiar with the construction of 

the girder. He knew there were no handrails or a cable attached to the 

girder and, therefore, safetv belts could not he used while walking across. 

Glenn stated that there were two ways the miners could have reached the 

oxygen line. They could have used a ladder which was on another deck or 

they could have walked across the girder. These facts establish that Glenn 

had sufficient information to give him reason to know of a possible 

violative condition, namely, that Martinez and Robinson could walk across 

the girder without the of safety belts. 

The difficult issue to decide in this case is whether Glenn "authorized" the violation. It is undisputed that he did not tell the miners to 

walk across the girder. He did not see them on the girder until they were 

sitting down and had t off their safety belts to the oxygen line. Glenn 

never gave any thought to. how Martinez and Robinson would get to the area. 

At the time, he was concerned about the danger of cutting into a line which 

was still under pressure and he was following Payne and Gilbert Martinez 

(not to be confused with Chris Martinez) to make sure the lines were bled 

properly. ·c1enn relied on Robinson and Martinez with their experience and 

expertise to complete their assigned tasks in a safe manner. 

The credible evidence also establishes that Glenn did not consider it 

to be unsafe for Robinson and Martinez to walk ~cross the girder without 

using a safety belt because they were very experienced in theii job. Glenn 

testified at the hearing: nl am sure if these two men felt any danger 

whatsoever they would have done something else" (Tr. 295). Additionally, 

when he saw Payne on the girder he waved him down because he didn't need 

him up there and not because he believed it was unsafe for him to be 

walking across the girder. 

As discussed earlier there is no question that there was a risk of 

falling for any miner who walked across the girder without a safety belt. 

There was no room for judgment by any miner as to whether this danger 

existed. Glenn had the authori to instruct his crew on the safe means of 

completing a job. To this extent he had control over the actions of 

Robinson and Martinez and, therefore, could have prevented the violation. 

20 
C6ntrary to the Secretary's contentions, the rPcorrl does not support a 

finding that Glenn presumed Robinson and Martinez would walk ~cross the 

girder. Glen's testimony on this issue is ambiguous. However, because 

walking across the girder was at least as likely a means of getting to the 

oxygen line as using the !adder, I find that Glenn had a duty to instruct 

the miners to use the ladder. Rased on the above facts, I find that Glenn 

indirectly authorized the violation by failing to caution Robinson and 

Martinez on the danger of walking on the girder and the need to use the 

ladder. 

The circumstances of this case differ from that in Kenny Richardson 

because here the violative condition did not exist at the time Glenn had a 

duty to act. In Richardson, the respondent violated the Act by failing to 

remove from service equipment in an unsafe condition. However, it is 

consistent 'with the remedial nature of the Act to impose a duty on agents 

to prevent violations which they have reason to know are likely to occur as 

well as to abate existing violative conditions. Often those with the same 

supervisory capacity as Glenn are the only members of management that have 

sufficient direct contact with the miners to actually ensure compliance 

with the safety and health standards. The primary purpose of the Act is to 

urge all members of management to do everything within their power to 

protect the health and safety of miners. Glenn's testimony evidenced an 

attitude that is contrary to this purpose. Although he is to be commended 

for an excellent safety record, his policy in this instance of allowing the 

miners to evaluate the risks of the job and determine when precautions are 

to be taken creates an atmosphere itself which is conducive to the 

occurrence of falling-type accidents. 

Assessment of a Penalty 

The Secretary proposes that a penalty of $500.00 be assessed against 

Glenn. Petitioner bases this on the allegation that Glenn was grossly 

negligent in allowing the violation to occur. I disagree with MSHA' s 

determination of the degree of negligence attributable to Glenn, 

iiGross negligence 11 is defined in 30 C.F.R. § 100.3(d)(3) as causing 

the violative condition or practice by the exercise of a reckless disregard 

of mandatory standards or the reckless or deliberate failure to correct an 

unsafe condition or pr act ice known to exist. Glenn did not actually know 

that Robinson and Martinez walked across the girder. He had previously 

tructed them on the need to wear safety belts and routinely discussed 

s matters with his crew. His policy as to these experienced and 

highly skilled miners was to allow them to evaluate the dangers involved in 

a particular job, and he relied on them to take appropriate actions to 

protect themselves. Although this policy was not, under the circumstances 

in th case, the best means of protecting the miners, it is not when 

coupled with the routine safety meetings, indicative of a reckless 

disregard of the standards, 

21 
Another factor to be considered is the good faith efforts of Glenn in 

quickly abating the condition. He immediately had Robinson and Martinez 

safely removed from the girder. After considering all the criteria 

required to be examined in the assessment of a penalty, I deem a penalty of 

$40.00 to be appropriate. · 

ORDER 

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

the following: 

1. The citation is affirmed. 

2. A penalty of $40 is assessed. 

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

of this order. 

Distribution: 

J. Phillip Smith, Esq. 

Office of the Solicitor 

( 

l~Yt~ / Administr live Law Judge ,/ 

United States Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Edward H. Sherman, Esq. 

Sherman & Sherman 

30 Capitol Life Center 

16th at Gr~nt Street 

Denver, Colorado 80203 

22 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) 

) 

v. ) 

) 

JAN 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 80-164-M 

A/C No. 45-02404-05001 H 

5 \982 

LOPEZ REDI MIX COMPANY, ) MINE: Lopez Redi Mix Pit & Plant 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~~-

DECISION 

APPEARANCES: 

Ernest Scott, Jr., Esq., Office of the Solicitor 

United States Department of Labor 

8003 Federal Building, Seattle, Washington 98174 

For the Petitioner 

Michael W. Smith., Esq. 

1010 Sixth Street, P.O. Box 438 

Anacortes, Washington 98221 

For the Respondent 

Before: Judge Virgil E. Vail 

STATEMENT OF THE CASE 

The above-captioned civil penalty proceeding was brought pursuant to 

Section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 820(a) (hereinafter referred to as "the Act"). 

Pursuant to notice, a hearing on the merits was held in Seattle, 

Washington on April 28, 1981. The parties waived filing post-hearing 

briefs, 

ISSUES 

The principal issues presented in this proceeding are (1) whether 

respondent has violated the provisions of the Act and implementing 

regulations as alleged in the proposal for assessment of civil penalty 

filed, and, if so, (2) the appropriate civil penalty that should be 

assessed against the respondent for the alleged violation bnsed upon the 

criteria set forth in section llO(i) of the Act. Additional issues raised 

23 
are identified and disposed of where appropriate in the course of this 

decision. 

In determining ·the amount of a civil penalty assessment, section 

llO(i) of the Act requires consideration of the following criteria: (1) the 

operator's history of previous violations, (2) the appropriateness of such 

penalty to the size of the business of the operator, (3) whether the 

operator was negligent, (4) the effect on the operator's ability to continue in business, (5) the gravity of the violation, and (6) the demonstrated good faith of the operator in at tempting to achieve rapid compliance after notification of the violation. 

FINDINGS OF FACT 

1. Richard Leonard Pickering, Jr. , is the owner and operator of the 

Lopez Redi Mix Company, named as respondent in this case. 

2. Respondent operates a sand and gravel pit and concrete redi mix 

business on Lopez Island, San Juan County, in the State of Washington. 

3. Respondent operates the business with the assistance of one part 

time employee who usually drives the truck. 

4. Respondent's gross dollar volume of sales per year is approximately $100,000. 

5. The respondent's business involves selling sand, gravel and redi 

mix cement on Lopez Island and Shaw Island. This is accomplished by the 

extraction of sand and aggregate from a pit located on property owned by 

the respondent. This product is mixed with cement purchased from suppliers 

located in Seattle and Bellingham, Washington. The respondent uses a 

Caterpiller 922B front end loader to extract the material from his pit, 

purchases diesel oil and gasoline for use in his equipment from Standard 

Oil Company, delivers the redi mix cement to its customers traveling on 

county roads on the island, uses the telephone and United States mail 

service for business purposes and travels at times to Seattle, Washington 

via a ferry boat to the mainland and on the highways of the State of 

Washington looking at machinery and equipment (Tr. 10, 11 and 12). 

6. Citation no. 354617 was issued to the respondent on September 20, 

1979, for a violation of 30 C.F.R. § 56.3-2. 

7. ?n September 20, 1979, during a regular inspection of respondent's 

pit, MSHA I inspector Vern Boston observed an approximately 80 foot high 

wall on the east side of the pit with fallen trees and loose brush hanging 

over the top edge. A roadway into the pit was sloped so that the loader 

would be facing downhill while it was extracting material from the east 

wall of the pit (Tr. 31). 

1/ Mine Safety and Health Administration. 

24 
8. The east wall of the pit appeared stable but one tree had slid off 

the top and was laying on the sand where it had apparently fallen from the 

top. 

9. Fresh t tracks at the face of the east wall of the pit 

indicated that recent loading of material had been performed there (Tr. 37 

and 38). 

10. MSHA inspector Boston issued a section 107(a) withdrawal order to 

respondent closing the east wall of the pit until the material had been 

stripped back no less than 10 feet at the top. 

11. After the inspector issued the citation, respondent "barricaded 

off" the area and stopped the removal of material from that area. 

12. Respondent purchased an additional five acres of land behind the 

east wall in order to correct the situation and have additional gravel to 

mine. He hired a contractor to remove the tree stumps and the over burden 

from this land (Tr. 55). 

13. Respondent returned to removing the gravel from the east wall 

after correcting the condition pointed out in the citation without 

notifying the MSHA inspector (Tr. 24). 

DISCUSSION 

Citation no. 354617 2/ charges the respondent with having violated 

mandatory safety standard 56.3-2. The standard provides as follows: 

56.3-2 Mandatory. Loose, unconsolidated material shall 

be stripped for a safe distance, but in no case less than 

10 feet, from the top of pit or quarry walls, and the loose, 

unconsolidated material shall be sloped to the angle of repose. 

The respondent does not argue that the condition described in the 

citation issued by inspector Boston did not exist. Instead, he argues that 

he, as owner and operator of the front end loader involved herein, was the 

only person exposed to danger and that he was extremely careful. Further, 

he did not at the time own the adjacent land next to his pit wall and had 

to get the material he did own out to supply his customers. He argued that 

his operation was small and did not involve shipments in interstate 

corrnnerce and was not covered under the Act. Also, in his answer to the 

Secretary 1 s pet ion for assessment of penalty, respondent argues that 

e'Lopez Redi Mix Company" has no capacity to be sued as a Respondent. 

2/ The citation reads as follows: 

The east wall of the pit was approximately 80 feet high, vert ally. 

It was not stripped back. The over-burden containing loose materials and 

trees were hanging over the rim. The loader that is used to extract 

materials from beneath the pit wall is a Cat 922B front end loader. 

25 
Relative to the last argument of the respondent, as described above, 

Richard Leonard Pickering, Jr., testified that he is the owner and operator 

of the business designated Lopez Redi Mix Company (Tr. 8). Pursuant to 

Section 3(d) of the Act an operator of a mine is described as follows: 

''operator" means any owner, lessee, or other person who 

operates, controls, or supervises a coal or other mine or 

any independent contractor performing services or construction 

at such mine. 

In lieu of Mr. Pickering's statements in this case as to his being the 

owner and operator of the Lopez Redi Mix Company, I find there is no merit 

to his argument that he cannot be charged with a violation of the Act. 

The respondent further argues that his mine is not subject to 

regulation under the Act as the products produced by the sand gravel pit 

are not destined for shipment in interstate commerce. The undisputed facts 

show that respondent sells sand, gravel and concrete to customers on the 

island where the pit located and on one other island nearby. Admittedly, the products of respondent's mine do not move across state lines but 

they do affect Commerce under definition of that tenn in Section 4 of the 

Act which states as follows: 

Each coal or other mine, the products of which enter 

Commerce, or the operations or products of which affect 

Commerce, and each operator of a mine, and every miner 

in such mine shall be subject to the provisions of the Act, 

Section 3(b) of the Act defines 11Commerce 11 as trade, 

traffic., commerce, transportation, or communication among 

th~ several States, or between a place in a State and any 

place outside thereof, or *** between points in the same 

State but through a point outside thereof. 

I find the law well settled on this question and conclude that 

respondentis mine ope~at come within the Commerce coverage of the Act, 

421 U.S, 542, 547 0975), the Supreme Court said 

purely intrastate in character may be regulated by 

where the activity, combined with like conduct by others similar 

affects commerce among the States or with Foreign Nations." See 

In United States 

Heven act 

Congress, 

situated, 

26 
Heart of Atlanta Motels, Inc. v. United States, 379 U. S. 241, (1964); 

Wickard v. Filburn, 317 U.S. 111, (1942). In the oft-quoted ca3e of 

Wickard v. Filburn, supra, the Supreme Court held that wheat grown by an 

individual farmer for his own consumption is subject to federal regulations 

if it exerts a substantial economic effect on interstate commerce. The 

Court said that, even though the farmer's contribution to the demand for 

wheat may be trivial, that is 11 not enough to remove him from the scope of 

federal regulations where, as here, his contribution taken together with 

that of many others similarly situated, is far from trivial." At p. 127. 

Turning to the merits of the issued citation in this case, the facts 

show that a violation of standard 56.3-2 occurred. Respondent testified 

that he knew of the overhang and loose material at the top of the east pit 

wall and that it was dangerous to work under it. However, he stated that 

he had to get the gravel out (Tr. 15, 16 and 53). He argued that only his 

life was endangered and that he was careful (Tr. 17). This, of course, is 

not enough. There was a part time employee who drove a truck into the pit 

to be loaded and could, conceivably be endangered while in the pit. 

Further, the Act provides protection for all miners including the owneroperator herein, in spite of himself. 

The remaining question is what penalty should be assessed? This requires an analysis of six criteria. 30 U.S.C. § 820(i). Respondent is a 

small mine operator, but by his own statement, his ability to continue in 

business would not be affected by any penalty I may impose. 

During testimony, there was mention of a prior violation of a similar 

type as involved herein. However, no proof was forthcoming on this matter 

and it was denied by the respondent. Counsel for the Secretary, in final 

argument, stated that he was unclear as to any prior violations as shown on 

the statement from the assessment office and therefore, appropriate penalty 

for this violation should not be increased for this reason. The respondent 

demonstrated good faith by going ahead and barricading this section of the 

pit, and purchasing additional land next to the pit in order to facilitate 

correcting the overhang on the east wall. He spent considerable money on 

having the land "logged" and for the removal of loose material on the top. 

I find that the respondent 1 s failure to notify the inspector when he 

had corrected the condition involved herein was wrong, but that oversight 

apparently resulted from a lack of understanding of what was required under 

the Act. The respondent 1 s operation is small and he is not experienced in 

matters of this type. 

Based on the above findings and discussions, I conclude that the 

appropriate penalty for the violation found is $150.00.' 

Conclusions of Law 

I. I have jurisdiction over the subject matter and the parties to 

this proceeding. 

27 
2. Respondent violated 30 C.F.R. § 56.3-2 as alleged by the Secretary 

of Labor. 

3. The appropriate penalty for the violation ts $150.00 . 

. ORDER 

Respondent is ORDERED to pay the sum of $150.00 within 30 days of the 

date of this decision. 

Distribution: 

Ernest Scott, Jr., Esq. 

Office of the Solicitor 

United States Department of Labor 

. 8003 Federal Building 

Seattle, Washington 98174 

Mr. Richard Leonard Pickering, Jr. 

P.O. Box 21 

Lopez, Washington 98261 

?/~-~';?V~ VirgTIEiVail 

Administrative Law Judge 

28 
FEDEl.lAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

OZARK LEAD COMPANY, 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 71982 

Petitioner 

Respondent 

Civil Penalty Proceedings 

Docket No. CENT 81-102-M 

A.C. No. 23-00458-05016 

Docket No. CENT 81-133-M 

A.c. No. 23-00458-05017 

Frank R. Milliken Mine and Mill 

DECISION 

Appearances: Robert S. Bass, Esq., Office of the Solicitor, 

U.S. Department of Labor, Kansas City, Missouri, 

for Petitioner; 

Gerard T. Carmody, Esq., Bryan, Cave, McPheeters 

& McRoberts, St. Louis, Missouri, for Respondent. 

Before: Judge Melick 

These cases are before me upon petitions for assessment of civil penalties under section llO(a) of the Federal Mine Safety and Health Act of 1977D 

30 lioSoCo § 801 et ~o ~ the "Act~ 11 alleging 10 violations of mandatory 

standardso The general issues are whether the Ozark Lead Company (Ozark) 

has violated the regulations as alleged in the petitions filed herein, and, 

if so, the appropriate civil penalties to be assessed for the violations. 

Contested Citation 

Citation No. 543834 charges a violation of that part of the mandatory 

safety standard at 30 C.FaR. § 57.3-22 that provides that "[l]oose ground 

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

The citation reads as follows: 

Loose was observed in the back in the L-1 213-6775 

heading. Mucking had progressed beyond the loose toward 

the face creating a hazard for persons working or walking 

under it. The amount of loose involved was sufficient 

enough to cause serious injury. 

29 
It is not disputed that during the course of a regular inspection of the 

Frank R. Milliken Mine on July 30, 1980, MSHA inspector William Burich observed 

a mass of loose, unconsolidated material in the brow of the cited heading. The 

material was discolored and whitish in appearance indicating to Burich that it 

had been dried out for a period of between 4 hours to 24 hours. There were 

also cracks in the material. Burich concluded that it was just "waiting to 

fall." There was also a muck pile at the face of the cited heading and tire 

tracks leading to that muck pile but there were no miners in the immediate 

area and no other evidence that any work was underway. Burich did not know 

when anyone had last worked in the subject heading and did not bother to 

inquire. He nevertheless issued the citation based solely on the speculation 

that the tire tracks demonstrated that work had taken place in the cited heading after the "loose" had been created. Burich had also been informed (though 

the operator now contends, erroneously) that the cited heading was among those 

considered "active" and there were no signs, barricades, or other indication 

to s that the cited entry was inactive or off-limits. 

Barry Conway, the mine foreman in charge of the cited area, testified 

that the subject heading was indeed considered by him to have been "inactive" 

as of July 18, 1980. He admitted, however, that neither the general mine 

map nor any other official document reflected this status even as late as 

July 30, 1980, the date of the inspection, and that not even Company safety 

tor Roderman or mine foreman, Ron Thomas, were told of the closing. 

Conway further admitted that no physical evidence existed to show that the 

subject heading was "inactive" and that nothing would have prevented an 

from entering that heading. Conway testified that as of July 18, 

1980, he had not observed any "loose" in the heading. Conway admitted, however, that blasting had thereafter continued in the general vicinity of the 

cited area and, on at least one occasion, only 35 feet from the cited loose. 

This blasting continued until July 24, 1980. Conway admitted that a reasonably prudent mine foreman would have barricaded an inactive area such as the 

at issue. 

Since it is undisputed that the cited "loose" did in fact exist, the 

question to be decided is whether that "loose" was 11 taken down or 

supported before any other work [was] donen within the 

men ts cf i:he cited standardo In this regard, I find the Secretary 1 s case to 

be The Secretary 1 s own evidence shows that the 11 loose 11 had existed 

for not more than 24 hours before its discovery by Inspector Burich around 

30 on the afternoon of July 30, 1980, and no credible evidence exists to 

show that any work had been pecf..:.nned in that section of the mine during that 

period of timeo Indeed, the only credible evidence of work performed in that 

area was shown by company records to have been performed on July 24, 1980--

5 before the 11 looseii would have even existed. Evidence that tire tracks 

and a muck e existed in the cited entry without evidence establishing the 

time at which they were placed there does not of course prove that work had 

been in the cited entry after the "loose" had come into existence. 

While a dangerous condition did in fact exist here, under the unique 

facts of this case I can find no violation of the particular standard that 

was citedo The citation must accordingly be vacated. 

30 
Proposal for Settlement 

In an amended joint motion to approve settlement filed at hearing, the 

parties requested the disposition noted below. Sufficient evidence has been 

presented, including evidence relating to the criteria set forth in section 

llO(i) of the Act, from which I am able to determine that the proposed settlement is appropriate. The motion is accordingly approved. 

ORDER 

Docket No. CENT 81-102-M 

Citation No. 543834 is VACATED. The Ozark Lead Company is ORDERED to 

pay a civil penalty of $320 within 30 days of the date of this decision, to 

be apportioned as noted below: 

Approved 

Original Settlement 

Citation No. Date Standard Assessment Amount 

544407 07/29/80 57.14-1 $52 $45 

543835 07/31/80 57.15-5 78 78 

544608 07/31/80 57.9-54 66 so 

543836 08/05/80 57.6-57 98 98 

544408 08/05/80 57.14-1 98 49 

Docket No. CENT 81-133-M 

Citation Nos. 543846 and 543848 are VACATED. The Ozark Lead Company is 

ORDERED to pay a civil penalty of $170 within 30 days of the date of this 

decision, to be apportioned as noted below: 

Citation Nao 

543845 

543849 

Distribution: 

Date 

10/28/80 

10/27/80 

Standard 

57 oll-1 

5706-106 

Robert Bass, Esq., Office of the Sol 

Room 2106, 911 Walnut Street, Kans 

Original 

Assessment 

Melick\\ 

Approved 

Settlement 

Amount 

$ 48 

122 

nistrati\v Law Judge 

tor, UD Department of Labor, 

City~ MO 64106 (Certified Mail) 

Gerald T. Carmody, Esq., 500 North Broadway, Suite 2100, St. Louis, MO 

63102 (Certified Mail) 

31 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISJA'r 7 1982 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

COLORAIXl WESTMORELAND, INC., 

Respondent. 

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CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 79-391 

A/C No. 05-02898-03008 

DOCKET NO. WEST 79-408 

A/C No. 05-02898-03023 

DOCKET NO. WEST 79-52 

A/C No. 05-02898-03015 

DOCKET NO. WEST 79-327 

. A/C No. 05-02898-03021 

DOCKET NO. WEST 79-344 

A/C No. 05-02898-03022 

DOCKET NO. WEST 79-160 

A/C No. 0502898-03017 V 

DOCKET NO. WEST 80-77 

A/C No. 05-02898-03025 

DOCKET NO. WEST 79-199 

A/C No. 05-02898-03020 

DOCKET NO. DENV 79-511-P 

A/C No. 05-02898-03012 

DOCKET NO. WEST 79-99 

A/C No. 05-02898-03016 

DOCKET NO. WEST 79-209 

A/C No. 05-02898-03018 

MINE: Orchard Valley 

DECISION AND ORDER 

Appearances: 

James H, Barkley~ Esq, 

Office of the Solicitor 

United States Department of 

1585 Federal Building, 1961 

Denver, Colorado 80294, 

Charles W. Newcom, Esq. 

Sherman & Howard 

2900 First of Denver Plaza 

633 Seventeenth Street 

Denver, Colorado 80202, 

Labor 

Stout Street 

for the Petitioner 

for the Respondent, 

Before: Judge John A. Carlson 

STATEMENT OF THE CASE 

v 

v 

This proceeding arose through initiation of an enforcement action 

brought by the Secretary of Labor, Mine Safety and Health Administration 

(MSHA) [hereinafter "the Secretary"], seeking the assessment of civil 

monetary penalties against Colorado Westmoreland, Inc. [hereinafter 

"Westmoreland"], for alleged violations of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1978) [hereinafter cited as 

"the Act"]. Pursuant to notice, thematters came on for hearing in Denver, 

Colorado, at which time the parties proposed a negotiated sett lernent on the 

record for approval by the Commissio~.:2 
DISCUSSION 

In the interest of clarity and convenience, I will address the docket 

numbers.and citations as they were presented to me on the record. 

WEST 79-391 

This case involves one citation, no. 242340, alleging a violation of the 

mine's roof control plan. Originally a § 104(d)(l) citation with a proposed 

penalty of $350.00, the Secretary moved to amend the citation to reflect a § 

104(a) action, with the proposed penalty to remain at $350.00. Westmoreland 

stipulated to the amendment. I find the amendment to be consistent with the 

purposes of the -Act and therefore grant the mot ion. 

WEST 79-408 

This case involves one order of withdrawal no. 243527, alleging a violation of the mine's roof control plan. The proposed penalty is $305.00. 

Westmoreland moved for approval to withdraw its notice of contest and pay the 

proposed penalty. I find the request to be consistent with the purposes of 

the Act and therefore grant the motion. 

WEST 79-52 

This case involves one citation, no. 242557, alleging a violation of the 

auxiliary fans and tubing standard. The action is a § 104 (d)(l) citation 

with a proposed penalty of $1,000.00. Westmoreland moved for approval to 

withdraw its notice of contest and pay the proposed penalty. I find the 

request to be consistent with the purposes of the Act and therefore grant the 

motion. 

WEST 79-327 

This case involves two citations, nos. 9945783 and 9945803, both 

alleging violations of the respirable dust reporting standard. The proposed 

penalties are $66.00 and $60.00, respectively. The Secretary moved to vacate 

both of the citations for lack of sufficient evidence of a violation. 

Westmoreland had no objection. I find the request to be consistent with the 

purposes of the Act and therefore grant the motion. 

WEST 79-344 

This case involves one citation no. 9945834, alleging a violation of the 

respirable dust reporting standard. The proposed penalty is $44.00. The 

Secretary moved to vacate the citation for lack of sufficient evidence of a 

violation. Westmoreland had no objection. I find the request to be 

consistent with the purposes of the Act and therefore grant the motion. 

33 
WEST 79-160 

This case involves one order of withdrawal, no. 242193, alleging a 

violation of the accumulation of combustible materials standard in that 

sloughage from the ribs was allowed to accumulate. The proposed penalty is 

$1,500.00. The Secretary moved to vacate the order on the grounds that there 

was substantial uncertainty as to whether or not there was a provable 

violation. Additionally, the inspector who. issued the order is no longer 

employed by the Mine Safety and Health Administration and the Secretary 

anticipated some difficulty in obtaining his services for trial. I find the 

request to be consistent with the purposes of the Act and therefore grant the 

motion. 

WEST 80-77 

This case involves one citation, no. 786452, alleging a violation of the 

mechanical equipment guards standard. The proposed penalty is $140.00. 

Westmoreland moved for approval to withdraw its notice of contest and pay the 

proposed penalty. I find the request to be consistent with the purposes of 

the Act and therefore grant the motion. 

WEST 80-199 

This case involves four citations, nos. 786331, 786337, 786343 and 

786344, each involving independent contractors of Westmoreland. The proposed 

penalties are $170.00, $122.00, $150.00 and $56.06, respectively. 

Westmoreland stated that the notices of contest to the citation were filed 

prior to the promulgation of standards relating to citation of independent 

contractors and that it had no desire to litigate the legal issue. 

Westmoreland moved for approval to withdraw its notices of contest and pay 

the proposed penalties, I find the request to be consistent with the 

purposes of the Act and therefore grant the motion. 

DENV 79-511-P 

case involves six contested citations. The t citation, 

no. 9945648, al a violation of the respirable dust reporting standard 

and carries a proposed penalty of $84.00. The Secretary moved to vacate the 

citation for lack of sufficient evidence of a violation. Westmoreland had no 

objection, I find the request to be consistent with the purposes of the Act 

and therefore grant the motion. 

The second citation, no, 9945673, al a violation of a respirable 

dust reporting standard in that Westmoreland failed to provide dust samples 

for four miners. The proposed penalty is $84.00. The facts indicate that 

samples were provided for three of the four miners, The Secretary moved to 

amend the citation and the proposed penalty to reflect that only one miner 

was not sampled, The sum of $21.rJ() was stipulated to be an appropriate 

penalty. 

34 
With the modification of the citati.on and proposed penalty, Westmoreland 

moved for approval to withdraw its notice of contest and pay the amended 

penalty. I find the request to be consistent with the purposes of the Act 

and therefore grant the motions. 

The third citation, no. 245993, involves an issue as to the denial of 

Westmoreland's walk-around rights by virtue of the activities of the 

inspector, though there is no dispute over the subject matter of the 

citation. The proposed penalty is $78.00. The Secretary moved to amend the 

proposed penalty to $39. 00 i-n the interest of insuring some enforcement of 

the citation. With the modification of the proposed penalty, Westmoreland 

moved for approval to withdraw its notice of contest and pay the amended 

penalty. I find the request to be consistent with the purposes of the Act 

and therefore grant the motions. 

The next citation in that same docket number is no. 242556, an imminent 

danger order of withdrawal with a proposed penalty of $395.00. The parties 

would stipulate that the facts indicate that there was no imminent danger and 

move that the citation reflect a § 104(a) action. The parties stipulate that 

the proposed penalty of S395.00 is appropriate for the violation. I find the 

request to be consistent with the purposes of the Act and therefore grant the 

motion. 

The next citation, no. 245933, alleges a violation of the ventilation 

system and methane and dust control plan standard. The proposed penalty is 

$38.00. Westmoreland moved for approval to withdraw its notice of contest 

and pay the proposed penalty. I find the request to be consistent with the 

purposes of the Act and therefore grant the motion. 

The final citation in this docket, no. 245992 1 also alleges a violation 

of the standard just referenced. The proposed penalty is $38.00. 

Westmoreland moved for approval to withdraw its notice of contest and pay the 

propoaed penalty. I find the request to be consistent with the purposes of 

the Act and therefore grant the motion. 

WEST 79-99 

This case involves three tations. The first citation, no. 9945717, 

alleges a violation of the respirable dust reporting standard and carries a 

proposed penalty of $52.00. The Secretary moved to vacate the citation for 

lack of suffic evidence of a v lation. Westmoreland had no objection. 

find the request to be consistent with the purposes of the Act and 

therefore grant the motion. 

The second and third citations in this docket, nos. 242696 and 245934s 

al violations of the ventilation system and methane and dust control plan 

standard. The proposed penalties are $84.00 and $130.00, respectively. 

Westmoreland moved for approval to withdraw its notices of contest and pay 

the proposed penalties. I find the request to be consistent with the 

purposes of the Act and therefore grant the motion. 

35 
WEST 79-209 

This case involves two citations, nos. 9945705 and 242191, both alleging 

violations of a respirable dust standard. The proposed penalties are $180.00 

for each alleged violation. Westmoreland moved for approval to withdraw, its 

notices of contest and pay the proposed penalties. I find the request to be 

consistent with the purposes of the Act and therefore grant the motion. 

ORDER 

The negotiated settlement proposed on the record is APPROVED. The 

respondent, Westmoreland, shall pay civil penalties in the total amount of 

$3,398.00 within 30 days of the date of this Decision. 

SO ORDERED. 

Distribution: 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Lahor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Charles W, Newcom, Esq. 

Sherman & Howard 

2900 First of Denver Plaza 

633 Seventeenth Street 

Denver, Colorado 80202 

Judge 

36 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

GERALD D. BOONE, 

v. 

REBEL COAL COMPANY, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JAN 111982 

Complainant 

Respondent 

Complaint of Discharge, 

Discrimination, or Interference 

Docket No. WEVA 80-532-D 

Rebel Coal No. 2 Mine 

DECISION AND ORDER AWARDING DAMAGES AND COSTS 

Appearances: Larry Harless, Esq., United Mine Workers of America, 

Charleston, West Virginia, for the Complainant; 

Frederick w. Adkins, Esq., Cline, McAfee & Adkins, 

Norton, Virginia, for Respondent. 

Before: Judge Melick 

On July 8, 1981, a decision was issued in this case holding that 

Mr. Boone was discharged by the Rebel Coal Company (Rebel) in violation 

of section 105(c)(l) of the Federal Mine Safety and Health Act of 1977 

(30 u.s.c. § 801 et seq., hereinafter the "Act"). A subsequent hearing 

was held in Abingdon~irginia, on December 15, 1981, limited to the issue 

of the amount of damages and costs that should be awarded the Complainant 

as a result of that unlawful dischargeo This decision is likewise limited 

t.o that issue o 

Back Pay 

It has been determined that Mr. Boone was unlawfully discharged by 

Rebel on May 28~ 19800 The evidence shows that at the time of his discharge, 

he was working a regular 5-day work week with periodic overtime on Saturdays" 

According to John Lockhart, assistant superintendent of the Rebel No. 2 Mine, 

the Saturday work was alternated among the employees so that each would work 

one or two Saturdays a month~ I find this testimony to be credible and conclude that Mro Boone was performing overtime work on alternate Saturdays. 

Boonevs regular rate of pay at that time was $9.81 an hour and the time-anda-half rate was accordingly $14.72 an hour. On his regular work days, Boone 

earned his regular rate for 7-1/4 hours and the time-and-a-half rate for 

45 minutes each day. For his Saturday work he received 7-1/4 hours of pay 

at the time-and-a-half rate. Mr. Boone was paid for 4 hours' work on the day 

of his discharge, May 28, 1980, and was reinstated by Rebel on July 23, 1980. 

37 
He requests back pay for the work lost between those dates. I find that he 

is entitled to such pay in the amount of $3,670 plus interest at the rate of 

12 percent per annum computed from the dates such pay·would ordinarily have 

been due to the date such payment is made. 

The credible evidence further shows that after Mr. Boone was reinstated 

on July 23, 1980~ he continued to work for Rebel only until August 20, 1980. 

On the latter date, he was injured on the job and was treated and released 

from a local hospital. Even though he was subsequently able to return to 

work, he never did. Boone never filed for any benefits to which he may have 

been entitled as a result of those work-related injuries and I do not there-. 

fore find that he is entitled in this proceeding to any additional pay for 

lost work due to those injuries. I also find that by leaving his job on 

August 20, 1980, and never returning Boone waived and abandoned entitlement 

to back pay from that date until October 9, 1981, the date he was ordered 

permanently reinstated following a hearing and decision on the merits. 1/ 

This determination is consistent with decisions under the National Labor 

Relations Act wherein the employer is released from back pay obligations 

as of the date the employee rejects an offer of permanent reinstatement. 

NLRB Vo Huntington Hospital, Inc., 550 F.2d 921 (4th Cir. 1977). 

I reject Mr. Boone's contention that he refused to return to work only 

because of mistreatment. He alleges that the operator forced him to walk 

back to the job site from the hospital that day. The credible evidence 

supports the operator's position that it was necessary to send Complainant 

to the hospital in an ambulance and that it was a well-established practice to reimburse the employee's taxi fare from the hospital. There is 

no evidence that Boone was mistreated. 

I therefore find, commencing as of October 9, 1981, and continuing thereafter for each regular work day for which Mr. Boone is not reinstated by Rebel 

that he is entitled to the amount of $96.40 (to reflect the new hourly rate of 

$11.51 per hour) and for each alternate Saturday commencing with October 10, 

:_/ I find that this action by Boone also constituted a waiver by him to 

temporary reinstatement but not to permanent reinstatement. Likewise, I do 

not find that Boone 1 s subsequent express written waiver of temporary reinstatement see transcript of temporary reinstatement proceedings dated September 2, 

1980, written waiver signed by Boone) had any effect on his right to permanent reinstatement. The rights are separate and distinct and it could work 

inappropria and oppressively against the miner should a waiver of temporary 

reinstatement be also held a waiver of permanent reinstatement. In the case of 

a temporary reinstatement, there is no guarantee that the miner will obtain 

permanent reinstatement after hearing on the merits and should he wish to 

obtain other employment during that interim period he should not be discouraged 

from doing so by risking his rights to permanent reinstatement. As the Commission has said, "unless compelling reasons point to the contrary, the full 

measure of relief should be granted to [an improperly] discharged employee." 

Secretary ex rel .• Gooslin v. Kentucky Carbon Corporation, 4 FMSHRC __ 

(January 6, 1982), citing Goldberg v. Barna Mfg. Corp., 302 F.2d 152 (5th Cir. 

1962). 

38 
1981, until Mr. Boone is reinstated, he is entitled to back pay of $125.21. 

Interest is to be paid on those amounts at the rate of 12 percent per annum 

computed from the date he would have ordinarily have been paid to the date 

he is actually paid those amounts. 

Evidence has been produced which suggests that Mr. Boone has performed 

occasional work assisting in his father's restaurant business since August 30, 

1980, which might ordinarily be considered as an offset to the back pay award. 

The evidence shows, however, that this work was not performed in an ordinary 

employer-employee relationship and was sporadic. Boone received no fixed 

income from that work but took cash from the cash register for his expenses 

as needed. No receipts or other records were kept with respect to the amounts 

withdrawn in this manner and Boone conceded that he filed no income tax 

returns with respect those monies. It appears under the circumstances that 

this "expense" money was actually not related to any employment relationship 

but rather constituted a form of parental support or charity and therefore 

should not be considered as "earnings" deductible from the back pay award. 

Such expense money should be treated in the same manner as welfare, unemployment benefits and other collateral benefits which are not generally considered "earnings" to be deducted from back pay awards. Cf. NLRB v. Marshall 

Field & Company, 318 U.S. 253, 255 (1943); NLRB v. Gullet Gin Company, Inc., 

340 u.s. 361, 369 (1951). 

Costs 

a. Travel, Meals, and Lodging for C0mplainant to Attend Hearings: 

In a petition filed by Daniel Hedges, Esq., on August 28, 1981, 

Complainant seeks reimbursement for $138.64 in expenses for attending the 

hearing in this case on April 28, 1981. Complainant also seeks expense 

reimbursement for attending the December 15, 1981, hearing. That claim 

is $142.54. These amounts are not contested. 

bo Attorneyis Fees and Expenses: 

Daniel Fo Hedges, Esqo, an employee of the Appalachian Research and 

Defense Fund, Inca 0 petitioned on August 28 0 1981, and September 17, 1981, 

for a fee of $1,650 plus expenses of $139.84 for representing Complainant at 

the April 28, 1981, hearing. Larry Harless, Esq., petitioned on December 24, 

1981, for fees and expenses of $882.05 for representing Complainant at the 

December 15, 1981 0 hearingo I have examined the claims and do not find them 

to be unreasonablea However 0 since the necessi of conducting a second 

hearing in this case was the direct result of the failure of Complainantvs 

first counsel to be prepared to present evidence as to damages and costs at 

the initial hear in this matter, I am deducting from the award to that 

attorney the fees and expenses incurred by Complainant and Respondent at 

the second hearinga Since the latter fees and expenses ($882.05 for 

Attorney Harless and $677050 for Attorney Adkins) exceed the amount billed 

by Mr. Hedges for the first hearing, I do not find Rebel to be responsible 

for Mr. Hedges' fee. Mr. Harless is entitled to a fee of $882.05 to be paid 

by Rebel. 

.. 3Jl 
ORDER 

Rebel Coal Company is ORDERED to pay Gerald D. Boone, within 30 days of 

this date, the following amounts: 

a. Back Pay (May 28, 1980 - July 22, 1980): $3,670. 

b. Back Pay (October 9, 1981, and continuing through date of actual reinstatement): $96.40 for each regular work day and $125.21 for each alternate 

Saturday. 

c. Interest on the above amounts computed at 12 percent per annum from 

the date these amounts were due to the date actually paid: 

d. Expenses: $276.18. 

Rebel Coal Company is further ORDERED to pay Larry Harless, Esq., within 

30 days of this date, attorney's fees and expenses of $882.05. 

It is further ORDERED that the Secretary of Labor commence review of this 

case for consideration of assessment of civil penalt es against the Rebel Coal 

Company. 

Distribution: 

Larry Harless, Esq., P.O. Box 1313, 

Frederick W. Adkins, Esqo, Cline, McAfee and Adkinss 1022 Park Avenue, 

NWo~ Norton~ VA 24273 (Certified Mail) 

Daniel Hedges, Esq., Appalachian Research and Defense Fund, Inc., 

1116-B Kanawha Boulevard, East Charleston, VN 25301 (Certified Mail) 

Thomas A. Mascolino, Esq., Counsel for Trial Litigation, Office of 

the Solicitor, Division of Mine Safety, U.S. Department of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 (Certified mail) 

Special Investigation, MSHA, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 (Certified Mail) 

40 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JAM 13 \981 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HAYWARD READY MIX COMPANY, INC., 

Respondent 

DECISION 

Docket No. LAKE 80-74-M 

A/O No. 47-02554-05002 

Stress Pit 

Appearances: Eva L. Clarke, Esq., Office of the Solicitor, U.S. Department 

of Labor, Arlington, Virginia, for the Petitioner; 

Ronald G. Poquette, Esq., Betz, LeBarron & Poquette, 

Eau Claire, Wisconsin, for the Respondent. 

Before: Judge Stewart 

This is a proceeding filed by the Secretary of Labor, Mine Safety and 

Health Administration (MSHA), under section llO(a) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §820(a) (hereinafter the Act), to assess 

civil penalties against Hayward Ready Mix. The contested citations in this 

case and the disposition are as follows: 

30 C.F.R. Disposition 

Number Date Standard Assessment Settlement 

295815 8/08/79 56.12-13 $90.00 Withdrawn 

295816 8/08/79 56.12-13 $90.00 Withdrawn 

295817 8/08/79 56.12-13 $90.00 $90.00 

At the onset of the hearing held in the above-captioned proceeding on 

August 6, 1981, in Eau Claire, Wisconsin, the parties stipulated that the 

administrative law judge has jurisdiction in this matter; at all times 

relevant in this matter Inspector Nelson Walter was a duly authorized 

representative of the Mine Safety and Health Administration; the operator 

is a small size operator and that the operator will be able to pay penalties 

if imposed. 

After the testimony of the inspector, the issue as to whether two of 

the citations involved the log washer, the scalper drive motor, or the 

scalper conveyor drive motor was not resolved. The parties conferred 

off the record and agreed that two citations would be withdrawn and the 

full assessed penalty would be paid for the remaining citation. 

41 
Based on the testimony of the parties, the information furnished and 

an independent review and evaluation of the circumstances, I find the 

settlement proposed is in accord with the provisions of the Act. 

ORDER 

The settlement negotiated by the parties in the above-captioned proceeding 

is APPROVED. 

Respondent is ORDERED to pay the amount of $90.00 within 20 days of 

the date of this order. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Eva L. Clarke, Esq., Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Ronald G. Poquette, Esq., Betz, LeBarron & Poquette, 514 First Wisconsin 

N'ltional Bank Building, Eau Claire, WI 54701 (Certified Mail) 

42 
1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

13; 1982 

SECRETARY OF LABOR, 1 Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. WEVA 81-24 

A/O No. 46-05~69-03011F 

v. 

Ford No. 1 Mine 

LOGAN-MOHAWK COAL COMPANYe 

INC. 

Respondent 

H.M.N. & S. COAL COMPANYu INC.u 

Party Respondent 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

The Solicitor has filed a motion to approve a settlement 

in the above-captioned proceeding. original assessment 

for the alleged violation of 30 CFR 75.200 was $10;000. The 

proposed settlement is $500. 

The citation in question provides as follows: 

The roof control plan was not being followed 

the No. 2 entry working on the No. l 

(001-0) r in that stipulates that 

minimum of six ·temporary supports shall 

be led prior to Evidence 

cated and statements by the 

eyewitnesses to the accident revealed that 

Mo CraddockF Foreman talling 

an area known 

thout the use 

resulted in a fatal 

lectors were not 

places had not been bo 

loose 

supports; 

to Craddocko 

to indicate 

It was further revealed that a practice of using 

three to four temporary supports 

roof bolting operations prevailed at this 

on the Noo 1 unit (001-0), second shift. 

Also, the investigation that personnel 

required to install roof supports were not 

adequately trained to insure that such persons 

are familiar with the functions of the support 

being used and proper installation procedures. 

43 
The circumstances surrounding the violation are summarized 

in the "Commentary" portion of MSHA's investigation report 

as follows: 

At 3:15 p.m., Monday, December 31, 1979 the 

No. 1 section crew, under the supervision of 

Lewis M. Craddock, Foreman (victim), entered 

the mine and walked to the active working 

areas of the section. According to Mark L. 

Taylor, electrician, after an examination 

of the working areas was made by Craddock 

(victim} , normal operations began and 

continued until the accident occurred. 

Taylor explained that Craddock assisted him 

in repairing the No. 4 shutt car trailing 

cable. Shortly thereafter; Taylor stated that 

the No. 2 shuttle car became inoperative and 

while making repairs to the car, he (Taylor) 

noticed Craddock walking towards the working 

faces. Taylor stated that shortly thereafter 

he heard the roof bolting machine being 

operated. According to Taylor, after completing the repairs to the shuttle car, he 

proceeded to the No. 2 entry face where 

Craddock was operating the roof bolting machine. 

Taylor stated that Craddock (victim} was in 

the process of installing the second row of 

roof bolts when he (Taylor) noticed that there 

were no temporary roof supports installed in 

the place. Taylor continued to state that 

Craddock instructed him to assemble some 

additional roof bolts for the completion of 

the bolting cycle. According to Taylor, he 

went to the back of the roof bolting machine 

to assemble bolts when the roof fall 

occurred. 

stated that he ran around the machine 

and attempted to lift the rock from Craddock. 

Being unsuccess 1, Taylor explained that he 

summoned assistance from the other miners in 

the sectio:a.. Craddock was removed from under 

the rock, on a stretcher, and transported to the surface where he was taken to 

Man achian Regional Hospital. Craddock 

expired at 8:10 p.m. · 

44 
After setting forth the foregoing, the Solicitor's 

motion explains that the operator should not be found 

negligent for the following reasons: 

The victim's behavior could not have been 

anticipated by the Respondents for three 

reasons. First, as was revealed in MSHA's 

investigation, Foreman Craddock's actions on 

the day of his death were an aberrational 

departure from his normal behavior. Craddock 

had a reputation as a very safety conscious 

miner. As is reflected in the inspector's 

statement prepared by MSHA's accident 

investigator, Craddock would not permit crew 

members to bolt roof without the use of 

temporary supports. He had the necessary 

temporary supports available to perform the 

job; however, he failed to use them. Second, 

Craddock's behavior could not have been 

anticipated because at the beginning of the 

shift on which the fatality occurred, the 

mine superintendent told Craddock to limit 

the activity of his shift to loading coal in 

four entries. He told Craddock to leave all 

roof bolting work for the midnight shift. 

Third, as was normally the case on the 

afternoon shift, there were no supervisory 

employees other than Craddock who were at 

the mine when the accident occurred. 

The Solicitor further explains that other conditions 

set forth in the order in addition to the failure to set 

temporary roof supports are not especially significant, 

stating in this respect~ 

The cause of the accident was Craddockvs failure 

to have temporary roof supports in place while 

he was roof bolting. As the citation indicates, 

other apparent violations of the roof control 

plan were discovered during the investigation. 

The first is that reflectors were not being 

used to identify places in the mine where roof 

bolts had not been installed. In the context 

of Respondent 1 s operations, this infraction 

was technical in nature because there was only 

one mining crew and it was advised at the beginning of the shift as to areas which were not 

bolted. MSHA also charged that a "practice" of 

using three to four temporary roof supports 

"prevailed" at the mine on the second shift. The 

investigation simply revealed that one individual, 

a roof bolter helper, had on some occasions prior 

45 
to the accident set only four, or as few as 

three jacks. This individual knew that six 

jacks were required by the roof control plan, 

and would only set fewer jacks when he was 

concerned about prolonged exposure to unbolted 

roof. On those occasions when he did set four 

jacks, he set them in a manner which he felt 

was safer than the six jack pattern. Finally, 

MSHA alleged that this employee was not 

adequately trained in the requirements of the 

roof control plan. In fact, two' days prior to 

the accident the safety director for the mine 

had presented a full day of roof control 

training, which included a film on the need 

for the use of temporary roof supports. 

According to the mine superintendent, this 

employee was extremely nervous during his 

interviewing session. All of the employees 

interviewed were aware of the roof conditions 

at the mine and stated that management 

constantly made them aware of the roof 

conditions. 

The Solicitor cites Nacco Mining Company 2 FMSHRC 1272 

(April 29, 1981) affirming VINC 76X-99 (December 17, 1976) 

as a basis for his position that in this case the operator 

was not negligent. In Nacco a section foreman, while supervising two miners who were cutting the roof belt trench, 

proceeded alone past the last row of permanent supports 

under loose, unsupported roof, where a large rock fell on 

him causing the injuries from which he later died. There 

were no temporary supports in that location and the foreman 

was not installing temporary supports or inspecting the roof 

prior to such installationo In that case, I found that the 

gravity of the violation was very serious but that the 

operator was not negligent under the circumstances because 

it had not been remiss selecting and training the foreman 

who previously had exercised good judgment. I further found 

the operator should not be held responsible for negligence 

which was part of the unexpected and inexplicable behavior 

foreman whose actions created the potential of harm 

to himself but not to any of the miners working under 

In affirmingr the Cormnission stated: 

Where as herev an operator has taken reasonable 

steps to avoid a particular class of accident 

and the erring supervisor unforeseeably exposes 

only himself to risk, it makes little enforcement sense to penalize the operator for 

"negligence." Such an approach might well 

46 
discourage pursuit of a high standard of care 

because regardless of what the operator did to 

insure safety, a negligence finding would 

automatically result. We therefore approve 

the judge's finding of no negligence. 

The facts in the instant case support the Solicitor's 

assertion that this case involves a well-trained foreman 

with a reputation as a very safety conscious miner who 

unexpectedly endangered himself without jeopardizing any 

member of his mining crew. As the Solicitor points out, 

reference to the photograph in the investigation report 

reveals that the electrician who came onto the scene just 

prior to the fatal accident was well back from the danger 

zone in his position behind the roof bolting machine. 

According to the Solicitor, the electrician was in that 

location because the foreman told him to stay back there 

because the roof was bad. 

In light of the foregoing, I accept the Solicitor's 

position that this case is governed by Nacco. In Nacco I 

assessed a $500 penalty which was approved by the Commission. 

That penalty amount which is the recommended settlement 

here, also comports with the other statutory criteria. The 

recommended settlement is therefore, approved. 

ORDER 

The operator is ORDERED to pay $500 within 30 days from 

the date of this decision. 

Distribution: 

David E. Street, Esq., Office of the Solicitor, U.S 

Department of Labor, Rm. 14480, Gateway Bldg., 3535 

Market St., Philadelphia, PA 19104 (Certified Mail) 

William H. Howe, Esq., Loomis, Owen, Fellman and Howe, 

2020 K St., N.W. 1 Washington, DC 20006 (Certified 

Mail) 

Arthur Sammons, President, H.M.N. & S. Coal Company, Inc., 

413 E. McDonald Ave., Man, WV 25635 (Certified Mail). 

47 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

LOGAN-MOHAWK COAL COMPANY, 

INC. I 

Respondent 

and 

H.M.N. & S. COAL COMPANY, INC., 

Party Respondent 

January 21, 1982 

Civil Penalty Proceeding 

Docket No. WEVA 81-24 

A/O No. 46-05769-03011F 

Deep Ford No. 1 Mine 

AMENDMENT TO ORDER TO PAY 

The ORDER in the above-captioned action is hereby 

amended as follows: 

Each Respondent is ORDERED to pay $250 within 

30 days from the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: Certifi Mailo 

David E. Street, Esqo, Office of the Solicitor, 

U.S. Department of Labor, Rm. 14480, Gateway Bldg., 

3535 Market St., Philadelphia, PA 19104 

Wi am H. Howe, Esq., Loomis, Owen, Fellman and Howe, 

2020 K St., N.W., Washington, DC 20006 

Arthur Sammons, President, H.M.N. & S. Coal Co., Inc., 

413 E. McDonald Ave., Man, WV 25635 

48 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Contest of Order 

Docket No. PENN 81-106-R 

Order No. 845125 

Renton Mine 

DECISION 

Appearances: Jerry F. Palmer, Esq., Pittsburgh, Pennsylvania, for 

Contestant; 

David T. Bush, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for Respondent~ 

Before: Judge Melick 

On March 4, 1981, MSHA inspector Gerald Davis issued Order of Withdrawal No. 845125 pursuant to section 104(d)(l) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act" for an alleged 

violation at the Consolidation Coal Company (Consolidation) Renton Mine. J:/ 

11 Section 104(d)(l) of the Act reads as followsg 

''If~ upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory 

health or safety standard, and if he also finds that, while the conditions 

created by such violation did not cause imminent danger, such violation is 

of such nature as could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health hazard, and if he 

finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, he shall include 

such finding in any citation given to the operator under this Act. If, during 

the same inspection or any subsequent inspection of such mine within 90 days 

after the issuance of such citation, an authorized 'representative of the Secretary finds another violation of any mandatory health or safety standard and 

finds such violation to be also caused by an unwarrantable failure of such 

operator to so comply, he shall forthwith issue an order requiring the operator the cause all persons in the area affected by such violation, except 

those persons referred to in subsection (c) to be withdrawn from, and to be 

prohibited from entering, such area until an authorized representative of the 

Secretary determines that such violation has been abated." 

49 
Consolidation thereafter filed a notice of contest under section lOS(d) of 

the Act and a motion for summary decision under Commission Rule 64, 29 C.F.R. 

§ 2700.64~ challenging the validity of that order. Hearings were conducted 

in this case on December 2, 1981, in Pittsburgh, Pennsylvania, at which I 

issued a bench decision granting a partial summary decision modifying the 

order to a citation under section 104(d)(l) of the Act. Following hearings 

·on the merits of the case, I issued a bench decision upholding that citation. 

Those decisions, which appear below with only nonsubstantive changes, are 

affirmed at this time. 

Partial Summary Decision 

On March 4, 1981, MSHA inspector Gerald Davis issued 

Order No. 845125 pursuant to section 104(d)(l) of the 

Federal Mine Safety and Health Act of 1977 for an alleged 

violation at the Consolidation Coal Company Renton Mine. 

Consolidation thereafter filed a notice of contest and a 

motion for summary decision arguing therein for the vacation of the order. 

It is undisputed that the section 104(d)(l) citation 

set forth in the order at bar, as the precedential citation required by that sec~ion, had been modified to a section 104(a) citation as a result of a final decision of 

this Judge on September 24, 1981. ];j In an effort to 

salvage the order in this case, the Secretary has in effect 

moved to amend or modify the order to substitute another 

section 104(d)(l) citation for the one held invalid. In 

order to establish such a substitute citation, the Secretary also now seeks to amend or modify an earlier section 

104(d)(l) order (Order No. 843499 issued February 26, 1981), 

to a section 104(d)(l) citation. It is undisputed, however, 

that Order No. 843499 had previously, on July 10~ 1981, been 

the subject of a valid settlement agreement between the 

parties 0 

Now, a settlement agreement is actually a contract and 

the construction of such an agreement is accordingly governed 

by the same legal principles applicable to the construction 

of any other contract. 3/ In construing and determining the 

effect of a valid settlement~ just as with any contract~ the 

primary objective is to effectuate the intention of the 

parties and in determining the intention of the parties past 

practices between them are a relevant consideration. 4/ In 

this regard, I find that there was certainly no express 

reservation in the settlement agreement to allow MSHA to 

2/ Consolidation Coal Company v. Secretary of Labor, 3 FMSHRC 2207. 

3/ lSA Am.Jur.2d, Compromise and Settlement, § 23. 

4/ 3 Corbin on Contracts § 556; 15A Am.Jur.2d, supra. 

50 
subsequently reinstate or modify that order to a section 

104(rl)(l) citation, and no such reservation can be implied 

from past practices. To the contrary, it was understood by 

Consolidation officials at the time that they entered into 

this settlement agreement (and MSHA agrees that the practice 

was indeed uniformly followed in the past) that MSHA would 

not and had never previously modified a settled section 

104(d)(l) order to a section 104(d)(l) citation. MSHA had, 

at most, converted those settled section 104(d)(l) orders to 

section 104(a) citations and this was the practice that 

Consolidation officials understood and had relied upon in 

their settlement of Order No. 843499. 

It is, of course, well established law that a valid 

settlement agreement is final, conclusive, and binding on 

the parties. It is just as binding as if its terms had 

been embodied in a final judgment of the court. 1/ Under 

the circumstances, it would be a violation of that agreement for the Secretary to now modify Order No. 843499 to a 

section 104(d)(l) citation. 

The Secretaryvs reliance on the decision of Commission 

Judge Cook in the Youngstown Mines case (Youngstown Mines 

Corporation v. Secretary, 3 FMSHRC at pp. 1807 and 1808) 

is misplaced. In that case, Judge Cook modified a section 

104(d)(l) order to a section 104(d)(l) citation but the 

order there at issue, unlike the order herein~ had not 

been settled by the parties. 

Under all the circumstances, I find that Order No. 845125 

is without an essential precedential section 104(d)(l) citation and therefore cannot be sustained as a valid order. To 

the extent that I find Order No. 845125 invalid, I grant the 

motion for summary decision filed by Consolidation. Commission 

Rule 64~ 29 C.FoRo § 27000640 The order is accordingly modified to a section 104(d)(l) citation. Inasmuch as there does 

remain a factual dispute concerning the validity of this citation, however~ which can only be resolved through an evidentiary hearing, the motion for summary decision in that regard 

is denied. 

Decision on the Merits 

This case is before me upon the notice of contest filed 

by Consolidation under section lOS(d) of the Federal Mine 

Safety and Health Act of 1977 in which Consolidation had 

challenged the validity of a section 104(d)(l) order of withdrawalo Since that order has been modified to a section 

2_/ lSA Arn.Jur.2d, Compromise and Settlement, § 25. 

51 
104(d)(l) citation as a result of my partial summary decision in this case, it is the validity of that remaining 

citation that is now at issue. 

In contesting that citation, Consolidation now admits 

that there was indeed a violation as alleged and claims now 

only that: (1) the violation was not one that could significantly and substantially contribute to the cause and effect 

of a coal mine safety or health hazard, and (2) the violation was not due to the unwarrantable failure of the operator to comply with the standard. 

The citation before me alleges a violation of the standard at 30 C.F.R. § 75.701-3. In relevant part, that stanard reads as follows: 

For the purpose of grounding metallic frames, 

casings and enclosures of any electrical equipment, 

the following methods of grounding will be approved 

* * * (b) a solid connection to the grounded power 

conductor of the system, * * *· 

More specifically, the citation before me alleges that 

"the ten Labour 300 Volt DC pump in the rock dust chute [was] 

not properly frame grounded [and] the return feeder was 

corroded into where the pump return conductor clamped to the 

DC return feeder." As I have already noted, Consolidation 

has conceded that the violation did in fact occur as alleged. 

Whether that admitted violation is significant and substantial, however, depends on whether, based on the particular 

facts surrounding the violation, there existed a reasonable 

likelihood that the hazard contributed to would have resulted 

in an injury of a reasonably ser·ious nature. Secretary of 

Labor v. Cement Division, National Gypsum Company, 3 FMSHRC 

822at 8250 The test essentially involves two considerations, 

(1) the probability of resulting injury, and (2) the seriousness of the resulting injuryo 

It is undisputed in this case that in order for an electrical shock or electrocution to have occurred under the 

situation presented by the admitted violation, there must 

in addition have been some electrical failure in the systemo 

MSHA inspector Gerald Davis testified without contradiction 

that the most likely source for such a failure would have 

been from uninsulated and exposed wiring contacting metal 

on the pump frameo In this regard, Davis had indeed found 

that the 300-volt power cable on the very same pump cited 

herein had pulled out of its clamp at the point where it 

entered the metal connection box on the pump motor and that, 

as a result, some tape insulation on one of the wires spliced 

52 
inside that box had been partially stripped. A portion of 

that wire was thereby exposed. If this exposed wire were to 

come into contact with the small metal frame of the connection box, it is clear, based on the undisputed testimony of 

Inspector Davis, that a hazard of serious shock or electrocution did exist. 

Now, there is also undisputed testimony that the primary 

wire entering the connector box was at about knee level in an 

area where at least one miner would be present each shift. It 

is reasonable to infer from that evidence that at least one 

person could accidentally brush against those wires or trip 

over those wires and, in any event, come into contact with 

those wires sufficiently to cause the exposed wire inside the 

box to come into contact with the box itself thereby creating 

the shock hazard. Indeed, there is also undisputed evidence 

in this case that the vibration in the pump itself could have 

caused the exposed wire to come into contact with the metal 

box. 

Now, the operator's chief witness on this issue, Stanley 

Kretoski, claims that the pump was situated on a metal grate 

which, in turn, was attached to a metal rail embedded into the 

mine floor. He further asserts that this arrangement provided 

enough grounding to prevent any serious shock. Kretoski admits, 

however, that in order to be certain of the sufficiency of the 

grate and rail system, it would be essential to know its actual 

resistance. He further admits that he does not know what that 

resistance was. Indeed, Kretoski, as with the other witness 

presented by Consolidation, was not present at the time of the 

issuance of the citation, and relies primarily on his understanding of the cited conditions from other persons. Inspector Davis also testified that even if the grate and rail 

system had existed, that would not in itself have been sufficient to prevent serious shock. In light of Mr. Davisv well 

established credentials as a skilled and experienced electrician and the fact that he has been qualified and certified 

at both the Federal and state level in the field of electrical maintenance, I find his testimony on this point to be 

the more credible. 

The undisputed facts in this case warrant a conclusion, 

in my opinion, that serious shock was reasonably likely to 

occur under the circumstances. I find, moreover, that the 

hazard of shock or electrocution was reasonably serious. 

Under the circumstances, I conclude based on my own de novo 

analysis of the facts, that the violation was "significant 

and substantial" under the National Gypsum test. 

Determination must next be made then as to whether the 

instant violation was a result of the unwarrantable failure 

53 
of the operator to comply with the law. A violation is the 

result of unwarrantable failure if the violative condition 

was one which the operator knew or should have known existed 

or which the operator failed to correct through indifference 

or lack of reasonable care. Zeigler Coal Company, 7 IBMA 

280. 

For the reasons that follow, I find that the violation 

here was one which the operator should have kno.wn existed. 

Indeed, I find it quite likely that one of the operator's 

agents had actual knowledge of the corroded and deteriorated condition of the return feeder wire. The operator's 

electrician, identified here only by the name of Jerry, who 

accompanied Inspector Davis on the inspection, admitted that 

the new feeder wire that was found lying adjacent to the old 

corroded one had been lying there for several weeks. The 

company maintenance foreman or safety inspector, Bill Simpson, 

admitted to Mr. Davis that they had simply not gotten around 

to hooking up the new wire. I find that it may be inferred 

from this evidence that the operator knew of the deteriorated 

condition of the cited grounding wire for at least that 

2 weeks before the citation was issued. 

When that evidence is considered with Mr. Davis' testimony that it would have taken at least 6 weeks for the cited 

wire to have reached the condition of deterioration found by 

him, the conclusion is inescapable that the operator indeed 

had actual knowledge of the violative condition, and when I 

say operator, I am talking about one of the operator's 

responsible agents. 

Now, I find in any event that the operator should have 

known of the condition even if it did not have actual 

knowledge. Consolidation, at the time of this violation, 

was admittedly performing inspections of all its pumps on 

each shift~ and these inspections were admittedly being 

conducted by qualified electricians who were to determine 

the safety of these pumps on each shift. It is apparent that 

Inspector Davis was readily able to discover the cited defects 

in the grounding system visually and by simple common sense 

techniques without the use of any sophisticated instrumentationo It may be inferred therefore that the operator's 

tions were either not being performed as required or 

that they were being sloppily or negligently performed. Thus, 

find that Consolidation should, for this additional reason, 

have known of the violative condition. Indeed, the condition 

here cited was apparently so obvious that Mr. Simpson himself 

admitted to Inspector Davis that he was embarrassed by it. 

I also consider in this case that Consolidation officials 

had twice before, on February 10 and February 26, only a few 

54 
weeks before the citation here, been alerted to deficiencies 

in their pumps, and that therefore should have heightened their 

awareness of any problems with the pumps. 

Under all the circumstances, I find that the violation 

was one which the operator knew or certainly should have known 

of and therefore the violation was the result of the unwarrantable failure of the operator to comply with the law. The 

section 104(d)(l) citation before me must accordingly be 

affirmed. 

ORDER 

Order No. 845125 is MODIFIED to a citation 

Act and that citation is AFFIRMED. 

Distribution: 

ministrative Law Judge 

Jerry F. Palmer, Esq., Consolidation al Company, nsol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

David T. Bush, Esq., Office of the Solicitor, U.S. Department of Labor, 

Room 14480-Gateway Building, 3535 Market Street, Philadelphia, PA 

19104 (Certified Mail) 

55 
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)~ 

v. 

Petitioner 

POTASH COMPANY OF AMERICA, 

DIVISION OF IDEAL BASIC 

INDUSTRIES, INC., 

Respondent 

POTASH COMPANY OF AMERICA, 

DIVISION OF IDEAL BASIC 

INDUSTRIES, INC., 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)~ 

Contestant 

Respondent 

JAN i 9 \982 

Civil Penalty Proceedings 

Docket No. CENT 81-210-M 

A/O No. 29-00173-05021-V 

Docket No. CENT 81-211-M 

A/O No. 29-00173-05022 

PCA Mine and Mill 

Notices of Contest 

Docket No. CENT 81-87-RM 

Citation No. 161755 

November 26, 1980 

Docket No. CENT 81-88-RM 

Citation No. 161756 

November 26~ 1980 

Docket No. CENT 81-89-RM 

Citation Noo 173957 

November 26~ 1980 

PCA Mine and Mill 

DECISION 

Appearances~ 

Before: 

Jordana W. Wilson, Esq., Office of the Solicitor 9 U.So 

Department of Labor, Dallas, Texas, for the Petitioner; 

Charles C. High Jr., Esq., Kemp, Smith, Duncan and Hammond, 

El Paso, Texas, and Roy H. Blackman, Esq., Carlsbad, 

New Mexico, for the Respondent. 

Judge Stewart 

56 
The civil penalty proceedings were filed by the Secretary of Labor, Mine 

Safety and Health Administration (MSHA), under section llO(a) of the Federal 

Mine Safety and Health Act of 1977; 30 U.S.C. § 820(a) (hereinafter the 

Act) ];./ to assess civil penalties against the Potash Company of America. 

The notices of contest filed by the Potash Company of America were brought 

under section 105 of the Act. 

The position of Potash Company of America, a division of Ideal Basic 

Industries, Inc. ("hereinafter PCA"), was that Citation No. 161755, issued 

by the Secretary of Labor, Mine Safety and Health Administration ("Secretary" 

or "MSHA") on November 26, 1980, for allegedly failing to "immediately" report 

an "accident" in violation of 30 C.F.R. § 50.10 is without merit and should 

be vacated. 2/ 

This case arises out of a special inspection by MSHA at PCAvs potash 

Mine in Carlsbad, New Mexico, on November 24 9 1980, following notification 

from Respondent that it incurred a partial loss of electrical power for a 

short period of time during the night of November 23s 1980. As a result of 

that inspection, PCA was issued three citations for alleged violations of 

various regulations, including Citation No. 161755 for failure to 

"immediately" notify MSHA of the incident. 

1/ Sections llO(i) and (k) of the Act provide: 11 (i) 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 operatorvs 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. In proposing civil penalties under this 

Act, the Secretary may rely upon a summary review of the information 

available to him and shall not be required to make findings of fact concerning 

the above factors. 

"(k) No proposed penalty which has been contested before the Commission 

uncier section 105( shall be compromised mitigated~ or settled except with 

the approval of the Commissiono No penalty assessment which has become a 

final order of the Commission shall be compromised, mitigated~ or settled 

except with the approval of the court." 

2/ Section 105(d) of the Act provides~ 

- "(d) If~ within 30 days of receipt thereof, an operator of a coal or 

other mine notifies the Secretary that he intends to contest the issuance or 

modification of an order issued under section 104i or citation or a notification of proposed assessment of a penalty issued under subsection (a) or 

(b) of this section, or the reasonableness of the length of abatement time 

fixed in a citation or modification thereof issued under section 104, or 

any miner or representative of miners notifies the Secretary of an intention 

to contest the issuance, modification, or termination of any order issued 

under section 104, or the reasonableness of the length of time set for 

57 
Each of these citations were timely contested by PCA and assigned to 

Judge Virgil E. Vail with the following docket numbers: 

Citation Noo 

161755 

161756 

173957 

Docket No. 

CENT 81-87-RM 

CENT 81-88-RM 

CENT 81-89-RM 

These cases were subsequent consolidated and stayed by Judge Vail 

pending assessment of penalties. Thereafter, on July 14, 198li the 

Secretary filed a complaint proposing penalty for each of these citations 

under the.following docket numbers: 

Citation Woo 

161756 

173957 

161755 

CENT 81-210-M 

CENT 81-211-M 

PCA answered the complaint on July 29, 1981, and the civil penalty cases 

were assigned to the undersigned. By agreement of the parties, the notice 

of contest cases pending before Judge Vail were consolidated with the civil 

penalty cases for hearing and decision. The hearing on these consolidated 

cases was held in Carlsbad, New Mexico, on October 7, 1981. 

Disposition of Proceedings in Docket Nos. CENT 81-210-M, 

CENT 81-88-R11, CENT 81-89-RM 

At the beginning of the hearing, Docket Nos. CENT 81-210-M, CENT 

81-88-RM, and CENT 81-89-RM were disposed of by stipulation and motion. The 

Secretary moved to vacate Citation No~ 161756~ Docket Noso CENT 81-210-M, 

and CENT 81-88-RM (Tro 5) for the reason that after further investigation, 

abatement by a citation or modification thereof issued under section 104 9 

the Secretary shall immediately advise the Commission of such notification, 

and the Commission shall afford an opportunity for a hearing (in accordance 

with section 554 of title 59 United States Code, but without regard to 

subsection (a)(3) of such section)? and thereafter shall issue an order, 

based on findings of fact~ ~ modifying, or vacat the Secretaryvs 

citation, orderp or proposed penalty 9 or directing other appropriate reliefo 

Such order shall become final 30 days after its issuance. The rules of 

procedure prescribed by the Commission shall provide affected miners or 

representatives of affected miners an opportunity to participate as parties 

to hearings under this section. The Commission shall take whatever action 

is necessary to expedite proceedings for'., hearing appeals of orders issued 

under section 104 o ~ 

58 
there appeared to be insufficient evidence to support the citation (Tr. 7). 

This motion was granted and the proceedings in regard to this citation were 

dismissed. 

In addition, the Secretary moved to amend Citation No. 173957, Docket 

No. CENT 81-89-RM and Docket No. CENT 81-210-M, to change the characterization from an order of withdrawal to a citation issued pursuant to section 

104(a) of the Act, to delete the language that the alleged violation was 

substantial and serious, and to change the language of the citation to read: 

"The power outage occurred on November 23', 1980 in the North Mine, the 

company failed to test air quality for compliance with 30 C .• F .R. Part 57 .5 

within two hours of the power failure" (Tr. 5). PCA agreed to withdraw its 

notice of contest to the citation as amended and to pay the proposed penalty 

of $250 (Tr. 5, 10). The terms of the agreement were approved at the 

hearing. 

The dismissal of the proceedings in Docket Nos. CENT 81-210-M and 

CENT 81-88-RM with regard to Citation No. 161756 is AFFIRMED. The amendment 

of Citation No. 173957 in Docket No. CENT 81-89-RM and Docket No. 

CENT 81-210-M and the agreement that PCA will pay the full proposed penalty 

of $250 are AFFIRMED. 

Docket Nos. CENT 81-211-M and CENT 81-87-RM 

Stipulations 

The facts forming the basis of Citation No. 161755 were tried at the 

hearing; however, there was little material disagreement on what occurred. 

The disagreement centers on how to interpret what occurred. 

The parties entered into additional stipulations that: 

The violations as alleged and amended involved a mine 

that has products, that is, potash, which enter commerce. 

The penalties assessed for the violation of 30 CFR 

Part SOolO was $66 and for 57 .11-50 it was $250. Payment of 

the assessed penalties would have no effect on the operator's 

ability to continue in business. 

The PCA Mine and Mill is an underground potash mine owned and operated 

PCAo The operation is located approximately 24 miles northeast of 

Carlsbad, New Mexico. It is a single-level mine located approximately 1,000 

feet underground and it covers a 7- by 8-mile area. It is divided into two 

segments, the North and South Mines (Tr. 6). It employed 583 persons in 1979 

and produced approximately 750,000 tons of ore (Tr. 7). 

Citation No. 161755 

In Citation No. 161755 alleging a violation of 30 C.F.R. § 50.10, the 

inspector stated: 

59 
This citation was issued after completion of the 

investigation 11-26-80. A fire under the power plant control 

room caused a power failure that affected the use of the No. 1 

and No. 2 hoist for a period of more than 30 minutes. The 

power outage occurred at 2140 hours and was not restored 

until 2335 hours. The No. 2 man hoist (the one normally used 

to hoist men) was not energized until 0130 hours 11/24/80 due 

to circuit modification that was necessary to utilize outside 

power. Mr. Don Roberts, mine superintendent, stated [thatJ he 

felt that this was not criteria for immediate reporting. 

In a subsequent action issued on November 26, 1980, the inspector noted 

that: "At 0730 hours on 11/24/80 Mr. Bob Snow called the local Mine Safety 

and Health Administration office to notify Sidney R. Kirk, Supervisory Mine 

Inspector, of the accident." 

30 C.F.R. § 50.10 provides: 

If an accident occurs, an operator shall immediately 

contact the MSHA District or Subdistrict Off ice having jurisdiction over its mine. If an operator cannot contact the 

appropriate MSHA District or Subdistrict Office it shall immediately contact the MSHA Headquarters Office in Washington, 

D.C. by telephone, toll free at (202) 783-5582. 

An accident is defined in 30 C.F.R. § 50.2 to mean: 

(1) A death of an individual at a mine; 

(2) An injury to an individual at a mine which has a 

reasonable potential to cause death; 

(3) An entrapment of an individual for more than thirty 

minutes; 

4) An unplanned inundation of a mine by a liquid or gas; 

(5) An unplanned ignition or explosion of gas or dust; 

(6) An unplanned mine fire not extinguished within 

30 minutes of discovery; 

(7) An unplanned ignition or explosion of a blasting 

agent or an explosive; 

(8) An unplanned roof fall at or above the anchorage 

zone in active workings where roof bolts are in use or, an 

unplanned roof or rib fall in active workings that impairs 

ventilation or impedes passage; 

60 
(9) A coal or rock outburst that causes withdrawal of 

miners or which disrupts regular mining activity for more than 

one hour; 

(10) An unstable condition at an impoundment, refuse 

pile, or culm bank which requires emergency action in order 

to prevent failure, or which causes individuals to evacuate 

an area; or, failure of an impoundment, refuse pile, or culm 

bank; 

(11) Damage to hoisting equipment in a shaft or slope 

which endangers an individual or which interferes with use of 

the equipment for more than thirty minutes; and 

(12) An event at a mine which causes death or bodily 

injury to an individual not at the mine at the time the event 

occurs. 

It was not alleged by the Secretary, and in his testimony the inspector 

stated that it was not his contention, that there was an unplanned mine fire 

not extinguished within 30 minutes of discovery under the definition in 

paragraph (6). The principal issue addressed at the hearing was whether the 

power failure in the transmission line to the power substation constituted 

damage to hoisting equipment in a shaft which interfered with use of the 

equipment for more than 30 minutes as defined in paragraph (11). 1./ 

Mr. Earl Diggs, the MSHA inspector who issued the citation, indicated 

in his testimony that it was his understanding that an "accident" under 

30 C.F.R. § 50.2(h)(ll) occurs any time a hoist is "down" for more than 

30 minutes for any reason, without regard to damage (Tr. 38:15-18; Tr. 

39:18-24) and that a hoist is "damaged" within the meaning of 30 C.F.R. 

§ S0.2(h)(ll) whenever there is "an unplanned [hoist] outage for any 

reason" (Tr. 38:15-18)0 

3/ In a posthearing brief the Secretary stated that the issue presented is 

"ii"[w]hether an unexpected fire causing disruption of power to a hoist for more 

than thirty (30) minutes is an 9 accident 1 requiring immediate notification 

pursuant to 30 C.F.R. § 50.10." That statement of the issue is too broad as 

it could encompass a fire at the hoist itself or in the 440-volt feeder line 

to the hoist rather than in the .2300-volt transmission line to the mine 

voltage-reducing facilities. The broad issue urged by the Secretary is not 

reached in this decision. In its posthearing brief PCA stated this issue to 

be uiwas the power outage that occurred on November 23, 1980, an vaccidentv 

within the meaning of 30 C.F.R. § 50.2(h)(ll)?" PCA contends that "where, as 

here, a hoist is not damaged but, instead, is simply disabled by a loss of 

electrical power that effects the mine in general, no 'accident' within the 

meaning of 30 C.F.R. § S0.2(h)(ll) occurs and, therefore, no obligation to 

immediately report the loss of power arises under 30 C.F.R. § 50.10." 

61 
The resolution of this case depends upon the specific facts developed 

rather than upon the broad and divergent contentions in the Secretary's 

posthearing brief and in the inspector's testimony. 

PCA gets its power from two sources. It generates approximately 

50 percent of its own power and it buys 50 percent of its requirements from 

Southewestern Public Service (Tr. 77). Southwestern Public Service power for 

the North Mine comes to PCA from Southwestern's Route 31 Substation. 

There are five shafts and four hoists at PCA (Tr. 101). In the North 

Mine, there are two hoists; hoist No. 1 is normally used for production, 

hoist No. 2 is normally used to carry personnel (Tr. 102). Hoist No. 1 is 

normally powered by Southwestern Public Service power which is brought in at 

PCA's powerhouse and is controlled by breaker No. 3 (Tr. 88-89). Hoist 

No. 2 is normally powered by PCA-generated power. The hoists cannot be 

operated if power is absent. 

On November 23, 1980, at 9:40 p.m. in the powerhouse, Mark Christesson 

noticed lights flashing, the generators pulling down, and smoke (Tr. 69). 

He immediately shut down the power plant and all of the power (Tr. 69). 

Then he went into the basement and discovered and put out a fire (Tr. 69). 

This meant there were no lights in the North Mine and that hoist No. 2 was 

inoperable (Tr. 70). In addition, because breaker No. 3 had been thrown, 

hoist No. 1 was inoperable (Tr. 76). Finally, Southwestern Public Service 

power had been tripped at the sub~tation on Highway 31 (Tr& 75-76). 

In order to restore power to the No. 1 substation and hoist No. 2, the 

circuitry was modified to allow hoist No. 2 to be powered by Southwestern 

Public Service power (Tr. 83, 116-118). Rather than power from the powerhouse going down into the North Mine. through the shaft of hoist No. 2, 

Southwestern Public Service power was put up through the shaft from other 

parts of the underground mine where power was still available. Both the 

above ground and below ground electrical work was fairly simple (Tr. 93-

94, 119); however, Mr. Duren who has been employed by PCA for 35 years 

and who was the mine maintenance foreman, testified he had never performed 

this changeover before (Tro 118-119). 

Southwestern Public Service was notified that the power had tripped so 

that they could restore their power. They restored power by 11:35 p.m. (Tr. 

87, 97-98, 101, 120). Hoist No. 2 was energized at 2 p.m. (Tr. 100, 120). 

Only one witness was able to testify concerning when hoist No. 1 was 

energized. Mr. Kilgore testified that he was "pretty sureii hoist No. 1 

was energized after hoist No. 2 had been energized (Tr. 114). 

The fire referred to in the citation was discovered in PCA's powerhouse 

at approximately 10 p.m. on Sunday night, November 23, 1980, and extinguished 

within 15 to 20 minutes (Tr. 31;8-13; Tr. 68;18-21). Upon observing smoke 

62 
in the powerhouse, and as a safety precaution, the powerhouse operator shut 

down all electrical power circuits entering or leaving the powerhouse prior 

to investigating the cause of the smoke (Tr. 69:2-22). 

The mine has five shafts, four of which are equipped with hoists 

(Tr. 101:13-20). These hoists are known as the No. 1, No. 2, Eddy, and 

South Shaft hoists (Tr. 102:2-10; Tr. 107:14-18). 

Mine Electrical Supply and Distribution 

Parallel Electrical Supply 

The electrical power required for mining operations is provided by a 

combination of self-generated power and power purchased from Southwestern 

Public Service Company, the public utility serving the Carlsbad, New Mexico, 

area. About one-half of the required power is generated by PCA and the 

remaining one-half is purchased from Southwestern Public Service 

(Tr. 77:7-20). 

The generators used by PCA are located in a powerhouse at the mine site 

and supply power to a 2300-volt electrical bus system in the powerhouse. 

This 2300-volt bus system provides power to various substations through 

2300-volt feeder cables (Tr. 78:14-23). 

The power purchased from Southwestern Public Service is synchronized 

and utilized in parallel with that generated by PCA (Tr. 92:7-12). This 

power is received at the mine through several feeder cables, some of which 

are independent from each other and PCA's own power supply. 

The Southwestern Public Service power serving the North Mine area is 

provided through three separate feeder circuits all originating through a 

Southwestern Public Service substation located on Route 31 several miles 

from the mine site (Tr. 92:13-21; Tr. 121:1-16). One of these circuits 

enters the powerhouse and supplies power directly to the 2300-volt bus 

system in parallel with the power from PCA's generators. Another circuit 

bypasses the powerhouse and enters the North Mine area through what is 

known as 2 East Borehole and connects to the 12470 2 East Substation (Tro 

121:1-9]) Still another bypasses the powerhouse and enters the north area 

of the mine through the 24 East Borehole (Tr. 121:1-4). 

The Southwestern Public Service power serving the south area of the 

mine~ including the power for the Eddy and South Shaft hoists, is independent 

irom circuits serving the north area of the mine and does not originate 

through the Southwestern Public Service substation on Route 31. Similarly, 

these circuits, like two of .those serving the north area of the mine, bypass 

the powerhouse (Tr. 105:21-25; Tro 106:1-20). 

63 
Electrical Distribution and Power Circuits 

For the No. 1 and No. 2 Hoists 

The parallel Company/Southwestern Public Service power 4/ from the 

2300-volt bus system in the powerhouse is distributed through feeder cables 

to similar 2300-volt bus bars in various substations on the mine site. 

Breakers to deenergize the substations are located in the powerhouse (~ 

Joint Exh. 1). 

One of these substations, substation No. 1, is located about 100 yards 

from the powerhouse and is powered through breaker No. 7 in the powerhouse 

with 2300 volts (Tr. 73:5-13; Joint Exh. 1). From this 2300-volt bus bar, 

numerous ~ther circuits receive power ranging from 2300 volts to 480 volts. 

One circuit·(No. 1 Bank on Joint Exhibit 2) passes through a transformer that 

reduces the 2300 volts to 480 volts and then provides power to the following 

locations: 

1. Electric Shop; 

2. Electrical Panel in No. 2 Hoist Room; 

3. Commissary; 

4. Research; 

5. Carpenter Shop; 

6. Office Machine Shop; 

7. Pre-Fab Shop; and 

8. Powerhouse auxiliary. 

(Joint Exh. 2; Tr. 79:7-25; Tr. 80:1-5). 

The electrical panel in the No. 2 hoist room, in turn, supplies power 

to numerous other circuits, including the No. 2 hoist, 5/ lighting, control 

circuits, and recharging circuits for miner headlamps (Tr. 80:20-25; Tr. 

81:1-22). 

Other circuits powered from the No. 1 substation include street lights 

and various electric motorso (Joint Exh. 2; Tro 116:15-21; Tr. 117:12-20). 

Other substations are similarly supplied with power (Tr. 86:15-23). 

However, the No. 1 hoist is not powered from a substation. The 2300 volts 

supplied from the powerhouse is reduced to 440/480 by a motor-generator set. 

The reduced voltage is then supplied to the hoist motor through a switch. 

(Joint Exho 1; Tro 23-25; Tr. 89:1-4; Tro 89:5-13)0 

!:_/ The power generated by the company is sufficient without Southwestern 

Public Service power to operate the hoists (Tr. 96:19-22). 

5/ The Noo 2 hoist shaft is located about 75 to 100 yards from the No. 1 

substation (Tro 86:4-14)0 

64 
The Events of November 23, 1980 

The Discovery of Smoke and Deenergizing of all Circuits 

Around 9:40 p.m. on Sunday night, November 23, 1980, Mark Christesson, 

a powerhouse operator, observed smoke in the basement of the powerhouse and 

immediately began deenergizing all electrical circuits entering and leaving 

the powerhouse (Tr. 69:3-8). This was done as a safety precaution before 

entering the basement to determine the cause of the smoke (Tr. 69:13-14; 

92:16-21). A small fire was thereafter discovered around 10 p.m. and quickly 

extinguished (Tr. 68:18-25; Tr. 69:1). 

The deenergizing of all circuits by the powerhouse operator, which 

included the Southwestern Public Service circuit to the powerhouse, interrupted electrical power to the No. 1 substation (breaker No. 7), the No. 1 

hoist (breaker No. 3), and all other circuits in the north area of the mine 

receiving power through the powerhouse (Tr. 70:5-12; Tr. 76:11-24). 

In addition, when these circuits were deenergized, the breaker at the 

Southwestern Public Service substation on Route 31 tripped resulting in the 

loss of power originating through this substation and entering the north area 

of the mine directly through the 2 East Borehole and 24 East Borehole (Tr. 

76:2-7; Tr. 121:18-25). 

The south area of the mine, including the Eddy and South Shaft hoists, 

was unaffected by this interruption in power. Similarly, the direct current 

trolley power used for underground transportation was unaffected (Tr. 122:13-

17). 

Inspection of F.lectrical Cables and Restoration of Power 

Shortly after discovery of the fire, Mr. John Wright, PCA's electrical 

shop foreman, along with other individuals also called in, arrived at the 

mine to assist on-duty employees in restoring power. Upon inspecting the 

cables~ in the powerhouse~ it was determined that the fire had damaged the 

2300-volt cable f the Noo 1 substation bus bar (Tr. 73:1-13). The 

2300-volt cable supplying power to the Noa 1 hoist was not damaged in any 

way (Tro 84:15-21)0 Accordingly, the No. l hoist could have been energized 

by closing breaker No. 3, which had been opened along with other circuits by 

the powerhouse operator upon observing the smoke, as soon as the breaker at 

the Southwestern Public Service substation on Route 31 was reset (Tr. 92:22-

25) o Once this was done 9 the No. 1 hoist could have been restored to operation in 15 minutes at the most (Tro 92:2-6; Tr. 91:1-22). 

In an effort to restore power as soon as possible to the No. 1 substation, which, in turn, supplied power to the No. 2 hoist room and the No. 2 

hoist, Wright testified that electricians were sent to the No. 1 substation 

to disconnect the 2300-volt feeder cable coming from the powerhouse. This 

involved nothing more than untaping and unscrewing a "kerny" and pulling the 

wires back from the 2300-volt bus bar (Tr. 83:14-25; Tr. 84:1-5). This was 

65 
the only work required on the surface to restore power to the No. 1 substation and, in turn, the electrical panel in the No. 2 hoist room that provided 

power to the No. 2 hoist [Tr. 84:6-14]. 

Once this powerhouse feeder cable was disconnected, PCA planned to 

reenergize the No. 1 substation by bringing power from underground up the 

No. 2 shaft through the existing 2300-volt feeder cables between the No. l 

substation and underground (Tr. 117:6-20; Joint Exh. 2]. These feeder cables, 

prior to the fire, were used to provide power from the No. 1 substation down 

the No. 2 shaft to the underground electrical system (Tr. 117:15-17). The only 

work required to obtain power in this manner, as explained by Mr. Frances 

Duran, PCA's underground mine maintenance foreman, was to close some disconnects and the circuit breakers at the bottom of the No. 2 shaft (Tr. 117:21-

25; Tr. 118:1-3). This would change the source of power and energize the 

Noo 1 substation by using the Southwestern Public Service power that entered 

the mine through the 2 East Borehole. This feeder cable was already tied 

into the underground electrical system through the 12470 2 East Substation 

at the bottom of the 2 East Borehole and the 3 West Substation (Tr. 121:5-16). 

The total time necessary to reverse this electrical flow and energize the 

No. 1 substation from underground, as explained by Mr. Duran, who performed 

the task, was 10 to 15 minutes (Tr. 119:13-18). When this change was made 

around 10 p.m., Mr. Duran testified that there was no power from Southwestern 

Public Service through the 2 East Borehole circuit so he waited for this power 

to be restored before closing the breaker (Tr. 119:19-25; Tr. 120:1; Tr. 

121:18-25). 

Southwestern Public Service Temporary Substation 

And Delay in Restoring Power 

The three Southwestern Public Service circuits providing power to the 

north area of the mine through the powerhouse, 2 East Borehole and 24 East 

Borehole, all originated through the Southwestern Public Service substation 

on Route 31 (Tr. 96:2-7; Tr. 121:1-4; Tr. 78:1-13). On November 23, 1980, 

this substation was under construction and power to the mine was fed from 

temporary substation, truck mobile unit on the back of a tractor/ 

(Tr, 98:1-7)0 For this reason~ PCA was instructed by Southwestern 

Public Service not to reset the breaker if it ever tripped but, instead, to 

call them and they would dispatch someone to reset it (Tr. 98:8-14). 

Accordingly, when it was discovered on November 23, 1980, that the 

Southwestern Public Service breaker had tripped, Mr. Ronald G. Kilgore, a 

surface electrician~ testified that he arrived at the mine between 10:15 and 

10:30 porno and called Southwestern Public Service to dispatch someone to 

reset the breaker (Tr. 112:25; Tr. 113:1-2; Tro 113:18-21). This was a 

Sunday night so the individual on call had to be notified by Southwestern 

Public Service and then drive to the substation (Tr. 113:1-5). 

This breaker was reset and Southwestern Public Service power restored 

to the mine through the 2 East Borehole and 24 East Borehole circuits around 

11:30 p.m. (Tro 114:1-3). This power was then available to the No. 1 hoist 

66 
by closing breaker No. 3 in the powerhouse and to the No. 2 hoist through 

the No. 1 substation by closing the breaker at the bottom of the No. 2 shaft 

(Tr. 89:14-18, Tr. 90:9-25; Tre 91:1-12; Tr. 119:19-25; Tr. 1,20:1). Both 

breakers were thereafter closed and power to the hoists restored. 

Notification to MSHA and Issuance of Citation 

During the process of restoring power, Mr. Robert W. Snow, surface 

maintenance superintendent, testified that he discussed with Mr. Don Roberts, 

mine superintendent, whether the power outage was a reportable accident and 

both concluded it was not (Tr. 105:1-15). Similarly, it was concluded that 

the fire was not reportable because of its short duration (Tr. 105:6-8). 2_/ 

Definition of Accident 

The Secretary urges that in a lay sense the fire and loss of power to 

the hoists were "accidental" and that the hoisting equipment was "damaged" 

because its usefulness was impaired. As support for this argument, the 

Secretary relies on The American Heritage Dictionary of the English Language 

(1976), which defines "accident" as: "1. An unexpected and undesirable 

event; a mishap. 2. Anything that occurs unexpectedly or unintentionally." 

It defines "damage" as "Impairment of the usefulness or value of person or 

property; loss; harm." 

It is clear that it was not the intention of 30 C.F.R. § 50.10 to 

require the reporting of every unexpected and undesirable event or mishapo 

The definition of "accident" in 30 C.F.R. § 50.2(h)(ll) as "Damage to hoisting equipment in a shaft or slope which endangers an individual or which 

interferes with use of the equipment for more than thirty minutes" is not set 

forth in the abstract. That definition as well as the requirement for 

reporting accidents is included in Subchapter M, Part 50, entitled 

"Notification, Investigation, Reports and Records of Accidents, Injuries, 

Illnesses, Employment, and Civil Production in Mines. 11 Accidents of the 

12 types listed in section 50.2(h) are clearly the kinds of accidents which 

must be reported and there is no requirement in section 50ol0 to report 

accidents of other typeso Even without reference to the headnote title of 

Part 50 9 it is obviousp when those two sections are read in context, that the 

only accidents required to be reported by section 50.10 are those defined in 

section 50.2(h). 

Aside from the 0 lay definition" of accident~ the posthearing brief of 

the Secretary urges that "[m]ost importantly the triggering alternative 

element for the definition of ~accidenti as defined in the MSHA regulations, 

6/ An "accident" is defined in 30 C.F.R. § 50.2(h)(6) as including nAn 

unplanned mine fire not extinguished within 30 minutes of discovery." 

However~ there is no contention in this case that the fire lasted 30 minutes 

[Tr. 31:11-13L 

67 
'or which interferes with use of the equipment for more than thirty minutes,' 

existed here because there was no power for the hoists from 9:40 p.m. to 

. .., 11: 35 p.m. and the hoists were not energized until .2 p .m." 

Section 50.2(h)(ll) does not define a reportable accident as an occurrence where there is no power for the hoists for a period of time. Its 

definition, as pertinent to this case, is damage to hoisting equipment in 

a shaft which interferes with use of the equipment for more than 30 minutes. 

There is no question that there was an interference with the use of hoisting 

equipment in a shaft for more than 30 minutes but the pivotal question is 

whether the interference was due to damage to the hoisting equipment. 

In this case, it is undisputed, and even conceded, that neither the 

No. 1 nor No. 2 hoists were physically damaged as a result of the powerhouse 

fire and loss of power on November 23, 1980 (Tr. 50:12-16). Nevertheless, 

the Secretary contends that the loss of electrical power to the hoists, 

without more, was a reportable accident within the meaning of 30 C.F.R. 

§ 50.10 and 30 C.F.R. § 50.2(h)(ll) because the loss of power interfered 

with the use of the hoists for more than 30 minutes. 

There is evidence that MSHA had promulgated guidelines which, in effect, 

indicated that not every occurrence causing a hoist to be shut down for more 

than 30 minutes is an occurrence which must be reported. A document with a 

caption including the phrase: "Information Report on 30 C.F.R. Part 50" 

(Respondent's Exh. 1), published by the MSHA Health and Safety Analysis 

Center in February 1980, indic~ted that a natural occurrence, such as ice in 

the shaft causing a hoist to be shut down for more than 30 minutes, is not 

a reportable accident. J_/ 

Mr. Earl Diggs, the inspector who issued Citation No. 161755, identified 

PCA's Exhibit 1 as being published by the Department of Labor, Mine S~fety 

J../ An information report on 30 C.F.R Part 50 (revised February 1980), 

issued by the UoSo Department of Laborvs Mine Safety and Health Administration (Technical Support) by the Health and Safety Analysis Center, 

Denver, Colorado, contains the following question and answer on page 28: 

"Qo What constitutes "Damage to hoisting equipment • o • which interferes • o • for more than 30 minutes? 

"A. Damage may be caused (1) by some accident that includes the 

hoisting equipment or (2) damage may result from hoisting equipment failure All of the mining corrnnunity interested in preventing serious injuries 

and fatalities know that potential injuries may result from any hoisting 

accident or hoisting equipment failure. The real potential hazards make 

it imperative that the mining industry and MSHA learn about and analyze 

causes of hoisting accidents and failures of hoisting equipment to preclude 

future occurrences at the same or a different mine. 

"A natural occurrence such as ice in the shaft may cause a shaft and 

hoist to be shut down for more than 30 minutes. However, where no accident 

occurs, equipment is not damaged, and no individuals were endangered, the 

natural occurrence would not of itself be reportable." 

68 
and Health Technical Support and stated that Technical Support "* * * is 

where we get support from. When we have problems, we go to them for assistance" (Tr. 41:14-18). However, he stated that he disagreed with the answer 

given by Technical Support in response to Question 28 (Tr. 45:9-12). 

The guidelines in the publication by the MSHA Health and Safety Analysis 

Center are not binding in this proceeding in a determination of whether there 

was a reportable accident. They do indicate, however, that the inspector had 

no reason to be misled into believing that every occurrence causing a hoist 

to be shut down for more than 30 minutes was reportable. The inspector 

testified that he had not previously read the document. If he had, it is 

possible that he would not have testified so readily that he believed that 

every power failure for 30 minutes, for any reason, was reportable. While I 

cannot agree with PCA's characterization of a fire in the powerhouse as a 

natural occurrence no different from the disabling of a hoist due to an 

electrical failure, Exhibit 1 does establish that one branch of MSHA did not 

believe that without exception an occurrence causing a hoist to be shut down 

for more than 30 minutes must be reported. 

The inspector testified that he subsequently referred the question 

involved in this case to the MSHA subdistrict office for an opinion. The 

answer to the July 2, 1981, memorandum (several months after the date of 

the citation) indicated in general that no time in addition to 30 minutes 

was allowed for troubleshooting but that personnel could be allowed to 

remain underground under certain conditions. 8/ It was not definitive as 

to whether interference with hoisting, other than by a hoist malfunction, 

for 30 minutes was reportable. Even if the memorandum had been prepared 

prior to the date the citation was issued, and even if it were deemed to 

have significant probative value, there would be a remaining issue as to 

whether a general power outage was a hoist malfunction. 

8/ The text of the July 29, 1981, memorandum to the Supervisory Mine 

Inspector from the Subdistrict Manager (Petitioner's Exhibit 7) was as 

:follows: 

"The questions raised in your July 2, 1981 memorandum were forwarded to 

the Chief of Safety (see attached memorandum) for determination. 11Concerning reporting hoist malfunctions, the Chief of Safety agrees 

that once hoisting has been interfered with for thirty minutes, the incident 

must be immediately reported to MSHA. No additional time is allowed for 

trouble shootingo 11Concerning compliance wHh Standard 57.11-50~ When a mine has two 

hoists and one is down for repairs for more than thirty minutes, the Chief 

of Safety stated that a program directive has been prepared regarding this 

standard which has been forwarded to the Solicitor's office for approval. 

Therefore~ until this program directive is released, continue the current 

policy of allowing personnel to remain underground the remainder of the 

shift providing that all personnel are notified and are in agreement but 

not to allow the next shift to go underground until the hoist is repaired. 

"Feel free to distribute this memorandum to any interested party. 11 

69 
Thus, the exhibit does not aid in the resolution of the question as to 

whether a remote power failure in a transmission line can be classified as 

damage of a nature to make the power outage a reportable accident. No 

basis can be found to support the inspector's belief that a power outage 

for any reason (which would have included even a failure of the connnercial 

lines or equipment supplying high voltage to the mine) constitutes damage 

to the hoisting equipment when no physical damage to the equipment occurs as 

a result of the outage. 

The power outage under the circumstances of this case is clearly not 

reportable .under the requirements of 30 C.F.R. § 50.10. 

Here, 2300 volts were supplied through transmission lines from two 

sources, a commercial line and a PCA line. The high voltage supplied by 

the transmission line was reduced to 440 volts by transformers at a substation for use by one hoist and by a motor generator set for the other. 

It was established that there was no actual physical damage to either the 

hoist equipment or the 440-volt lines supplying the hoists. The record 

clearly establishes that the general power outage due to a failure in the 

transmission line is simply too remote to be considered as damage to a 

hoist in a shaft which would constitute a reportable accident. This 

determination leaves unanswered such questions as whether a failure of 

the 440-volt line at the point where it leads into the hoist motor or 

into the starting panel is a reportable accident or whether a failure of 

the 440-volt line 100 feet from the hoist is a reportable accident but it 

does dispose of this case in the only reasonable way that the specific 

issue involved herein can be resolved. 

A violation of 30 C.F.R. § 50.10 was not established by the preponderance 

of the evidence. Citation No. 161755 is VACATED. Proposed findings of fact 

and conclusions of law in the posthearing briefs filed by the parties which 

are not expressly or impliedly adopted herein are rejected on the grounds that 

they are, in whole or in part, contrary to the facts and law or because they 

are immaterial to the decision in this case. 

ORDER 

The proceeding in regard to Citation No. 161755 is DISMISSED. With 

regard to Citation No. 173957; Potash Company of America is ORDERED to pay 

the agreed upon sun of $250 within 30 days of the date of this order. 

Forrest E. Stewart 

Administrative Law Judge 

70 
Distribution: 

Jordana w. Wilson, Esq., Office of the Solicitor, U.S. Department of 

Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Charles C. High, Jr., Esq., Kemp, Smith, Duncan and Hammond, 2000 State 

National Plaza, El Paso, TX 79999 (Certified Mail) 

Roy H. Blackman, Esq., P.O. Box 31, Carlsbad, NM 88220 (Certified Mail) 

71 
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), 

v. 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Petitioner 

JAN 191982 

Civil Penalty Proceeding 

Docket No. WEVA 80-45 

A.C. No. 46-03805-03055 

Martinka No. 1 Mine 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

sUMMAaY DECISION 

This is a proceeding filed by the Secretary of Labor, Mine Safety and 

Health Administration (MSHA) (hereinafter "the Secretary"), under section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a) 

(hereinafter the Act), 1/ to assess civil penalties against Southern Ohio 

Coal Company (hereinafter SOHIO). 

The petition filed by the Secretary on November 29, 1979, included the 

following citations for which a ,civil penalty was sought: 

Citation or 

Order No. Date Standard Penalty 

0063004l} 5-29-79 103(f) $114 

00630045 5-29-79 103(f) 114 

Notations by the inspector on the citations issued, in subsequent action 

in the citations, and on his statements included the following: 

);./ Section llO(i) of the Act provides: 

"The Commission shall have authority to assess all civil penalties provided in this Acto In assessing civil monetary penalties, the Commission 

shall consider the operatorvs 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. In proposing civil penalties under this 

Act, the Secretary may rely upon a summary review of the information available to him and shall not be required to make findings of fact concerning 

the above factors." 

72 
A. Citation No. 0630044 

Joe S. Barber, representative of the miners, was nqt 

compensated with pay on the 05/08/79, 05/10/79, 05/11/79 

and 05/14/79 when accompanying an authorized representative 

of the Secretary on .a physical inspection of the mine. 

Inspector's Statement 

The condition or practice cited was known by the operator and should have 

been corrected. It was a technical violation. No dangers were involved. 

The condition was corrected within the time specified for abatement. 

Management took extraordinary steps to gain compliance by paying the man. 

Subsequent Action, Citation No. 0630044-1, June 8, 1979 

Joe S. Barber, representative of the miners was fully 

compensated with pay. 

B. Citation No. 0630045 

Charles F. Yost, representative of the miners was not 

compensated with pay on the 05/08/79 and 05/09/79 when 

accompanying an authorized representative of the Secretary 

on a physical inspection of the' mine. 

Inspectorvs Statement 

The condition or practice cited was known by the operator and should have 

been corrected. It was a technical violation. No dangers were involved. 

The condition was corrected within the time specified for abatement. 

Management took extraordinary steps to gain compliance by paying the man. 

Subsequent Action~ Citation No. 0630045-1, June 8, 1979 

Charles Fo Yost, representative of the miners was fully 

compensated with pay. 

SOHIOvs answer to the petition for assessment of civil penalty filed on 

December 3lp 1979 9 was as follows: 

la Southern Ohio Coal Company, Respondent, denies that 

its actions constituted a violation of Section 103(f) of the 

Federal Mine Safety and Health Act of 1977 as alleged by the 

authorized representative. 

2. Southern Ohio Coal Company, Respondent, states that 

the authorized representative acted in an arbitrary and 

73 
capricious manner contrary to the intent of the law-in finding that there had been the alleged violations and in issuing Citation Nos. 630044 and 630045. 

WHEREFORE, Southern Ohio Coal Company requests that the 

Office of Administrative Law Judges deny the Petition for 

Assessment of Civil Penalty. 

Pursuant to Rule 2700.10 of the rules of the Federal Mine Safety and 

Health Review Commission, 29 C.F.R. Part 2700, SOHIO also filed a motion 

on December 31, 1979, for an order vacating Citation Nos. 0630044 and 

0630045 and for dismissal of the proceeding upon the following grounds: 

(1) That Citation Nos. 630044 and 630045, copies of 

which are attached hereto as Exhibit A, alleged that two 

representatives of the miners were not compensated with 

pay when accompanying an authorized representative of the 

Secretary on a physical inspection of the mine, in violation of Section 103(f) of the Federal Mine Safety and 

Health Act of 1977 (the "Act"). 

(2) That the subject citations were issued during a 

"CCW' type of inspection. 

(3) That a "CCB" type of inspection constitutes a 

haulage inspection which is not a part of a regular inspection, MSHA Citation and Order Manual, I-122, a copy of which 

is attached hereto as Exhibit B. [1_/J 

(4) That representatives of the miners are not entitled 

to compensation pursuant to the Act when accompanying authorized representatives of the Secretary during a physical 

inspection of the mine, unless said inspection is a part of 

a regular inspection, Secretary of Labor v. The Helen Mining 

Company~ Docket Noc PITT 79-11-P, 1 MSHC 2193, 2198, 2199 

(Federal Mine Safety and Health Review Commission, November 21) 

1979)0 

On January 22, 1980, the Secretary filed a Motion to Hold in Abeyance 

requesting an order holding in abeyance Respondent's motion to dismiss. As 

grounds thereforet the Secretary submitted: 

lo The Citations allege violations of §103(f) of-the 

Federal Mine Safety and Health Act of 1977 resulting when 

];/ Exhibit B contained the following information: 

"CCB - Haulage Technical Inspection. Inspection of a haulage system. 

A haulage inspection which is part of a regular inspection shall not be 

reported under this code." 

74 
two employees of Respondent suffered a loss of pay when 

accompanying an authorized rep.resentative of the Secretary 

on other-than-regular inspection of the mine. 

2. This issue is now pending an appeal from the Review 

Commission's decisions in Helen Mining Company, 75-2518, 

79-2537 (D.C. Cir.,), and Kentland-Elkhorn 79-2503, 79-2536 

(D.C. Cir.). 

WHEREFORE, the Secretary requests that Respondent's 

aforesaid Motion be held in abeyance until a decision is 

rendered in the above-mentioned cases. 

Following the January 22, 1980, Motion to Hold in Abeyance, no further 

action was taken until December 1, 1980, when pursuant to Rule 2700.64 of the 

Federal Mine Safety and Health Review Commission's Rules of Procedure, SOHIO 

filed a motion for summary decision in the above-captioned case to dispose of 

the entire subject proceeding. In support of this motion, SOHIO enumerated 

the following statement of facts, statement of reasons presented, and 

discussion: 

STATEMENT OF FACTS: 

On May 29, 1979, Charles J. Thomas, authorized representative of Petitioner, served upon Respondent Citation Number 

630044. Said Citation alleged that "Joe So Barber, representative of the miners, was not compensated with pay on 

05/08/79, 05/10/79, 05/11/79 and 05/14/79 when accompanying 

an authorized representative of the Secretary on a physical 

inspection of the mine." On that same date and during that 

same inspection, which was a "CCB" (haulage) inspection and 

not a part of a regular inspection, Inspector Thomas issued 

Citation Number 630045, which Citation alleged that "Charles F. 

Yost~ representative of the miners, was not compensated with 

pay on 05/08/79 and 05/09/79 when accompanying an authorized 

representative of the Secretary on a physical inspection of 

the mine.u Both of the subject citations were later 

terminated following Respondentqs compensating Messrs. Barber 

and Yost. 

On December 27~ 1979 Respondent filed a Motion to Dismiss the subject action. Said Motion stated in part that the 

citations were not issued during a regular inspection and that 

the representatives of the miners were not entitled to compensation pursuant to the Federal Mine Safety and Health Act of 

1977, according to Secretar of Labor v. The Helen Minin 

Company, 1 MSHC 2193, 21 8, 21 Federal Mine Safety and 

Health Review Commission, November 21, 1979). 

75 
Subsequently, on January 15, 1980, Petitioner filed a 

Motion to Hold in Abeyance in which Petitioner admitted that 

the two subject employees were engaged in an "other-thanregular inspection of the mine" at the subject times and 

locations. Petitioner further stated that the issue in 

the subject action was pending appeal from the Review 

Commission's decisons in Helen Mining Company, supra, and 

Kentland - Elkhorn, l MSHC 2230 (Federal Mine Safety and 

Health Review Commission, November 30, 1979). Thus far, 

no formal ruling has been made concerning the above motions. 

ISSUES PRESENTED: 

.(1) Whether Section 103(f) of the Federal Mine Safety 

and Health Act of 1977 provides for compensation to 

representatives of the miners who accompany a federal 

inspector during a non-regular inspection. 

(2) Whether the precedential effect of Federal Mine 

Safety and Health Review Commission decisions in The Helen 

Mining Company, supra, Kentland - Elkhorn Coal Corporation 

supra, should be stayed in the instant action pending 

judicial review. 

DISCUSSION: 

(1) It is undisputed that both Citation Numbers 630044 

and 630045 concern Respondent's refusal to compensate representatives of the miners during a non-regular inspection, 

see Section 1 of Petitioner's Motion to Hold in Abeyance. It 

is further undisputed that the issue of whether representatives of the miners are entitled to compensation when 

accompanying an authorized representative of Petitioner on a 

non-regular inspection is now pending an appeal from the 

Review Commission~s decisions in Helen Mining Company, supra, 

and Kentland - Elkhorn~ supra~ see Section 2 of Petitionervs 

Motion to Hold in Abeyanceo Both of the above cases stand for 

the proposition that walkaround pay is limited to regular 

inspections, Helen Mining Company, supra, at 2198; Kentland -

ElkhornD supra~ at 2231. 

(2) Since the filing of Respondentvs Motion to Hold in 

Abeyance~ numerous cases have been decided regarding the 

validity of citations such as those in the instant action. 

In Helen Mining Company 9 the United Mine Workers of America 

moved for an order staying the effect of the Review Commission decisions in the Helen Mining Company and the Kentland -

Elkhorn cases, among others, pending judicial review. The 

Commissionervs denied this motion. Commissioner Backley in 

his concurring option stated that the UMWA was seeking "a 

76 
stay of the precedential value of the Commission's opinions." 

Commissioner Backley further stated that "[t]o stay the 

precedential effect of [the Commission's] decisions would 

not merely result in the issuance of final Commission decisions contrary to what the Commission has found to be the 

intent of Congress, but it would be inconsistent with the 

role assigned to the Commission under the Act," Helen Mining 

Companx, 1 MSHC 2331 (Federal Mine Safety and Health Review 

Commission, March 21, 1980). Commissioner Backley further 

stated that "[t]o temporarily overrule our precedent pending 

judicial review of our final orders • • • would be in 

derogation of our function." 

Subsequently numerous other cases have come before Federal Mine Safety and Health Review Commission judges in which 

the operators have moved for summary decision and such motions 

have invariably been granted. In Princess Susan Coal Company, 

an inspector conducted a 11free silica technical investigation" 

and the representative of the miners who accompanied the 

inspector was not compensated for the time he spent accompanying the inspector. Because the "free silica technical investigation" was not a regular inspection, the motion for summary 

decision was granted and the citation vacated, Princess Susan 

Coal Company, 1 MSHC 2367 (March 7, 1980). In Alabama 

By-Products Corp., miners were not compensated for accompanying inspectors during a "blitz" inspection. Citing Helen 

Mining Company, the Administrative Law Judge granted the 

Motion for Summary Decision and vacated the citation, Alabama 

By-Products Corporation, 1 MSHC 2395 (February 14, 1980). 

Similarly, in Island Creek Coal Company, the Administrative 

Law Judge vacated citations issued because compensation was 

denied to representatives of the miners who accompanied 

inspectors during spot inspections, Island Creek Coal Co., 

l MSHC 2521 (July 30, 1980). 

WHEREFORE~ RESPONDENT~ SOUTHERN OHIO COAL COMPANY HEREBY 

REQUESTS~ 

(1) That its motion for Summary Decision be granted; 

(2) That Citation Numbers 630044 and 630045 be vacated; 

{3) That the civil penalty proceeding captioned Docket 

Noo WEVA 80-45 be dismissed; and 

(4) That the court grant such other and further relief 

as the court may deem proper. 

On December 29, 1980, the Secretary filed a Memorandum in Opposition to 

Motion for Summary Decision to respond to SOHIO's motion for summary decision, 

stat 

77 
The issue before this Tribunal is whether or not the 

instant action should be stayed pending the decisions of 

federal courts in Helen Mining Company, BNA 1 MSHC 2193 

(FMSHRC, November 21, 1979), and Kentland-Elkhorn, BNA 1 

MSHC 2230 (FMSHRC, November 30, 1979). 

Respondent has urged that the instant case should not be 

stayed, and that a summary decision in its favor should be 

entered. As its only grounds for this position, Respondent 

notes that Commissioner Backley stated in his concurring 

opinion in Helen Mining Company, 1 MSHC 2331 (FMSHRC, 

March 21, 1980) that to stay the effect of that decision 

would result in the issuance of final Commission decisions 

contrary to Connnission precedent and that staying the Helen 

decision would be inconsistent with the role assigned to the 

Commission under the Act. Helen Mining Company, supra. 

Petitioner respectfully submits that Commissioner 

Backley's dicta in the Helen decision has no application to 

the instant case. If the Commission had stayed the Helen 

decision, the effect of its action would have been to subvert 

its own final order in that very case. In contrast, in the 

case at bar a stay is appropriate to preserve Petitioner's 

position so that in the event the courts rule in the Secretary's favor in Helen and Kentland-Elkhorn, the presiding 

administrative law judge may quickly reach a decision on the 

merits of the instant case. Otherwise, if Respondent's 

Motion is granted and the courts do rule in the Secretary's 

favor, Petitioner would have to begin his entire case again 

from scratch by issuing new Citations. Clearly the most 

economical course would be to stay the instant proceedings 

pending the courts' decisions. 

The presiding administrative law judge may, in his discretion~ exercise his authority to stay proceedings where 

issues raised in the proceedings will be substantially 

affected by other pending litigationo 

[T]he power to stay proceedings is incidental 

the to power inherent in every court to 

control the disposition of the causes on its 

docket with economy of time and effort for 

itself, for counsel, and for litigants. How 

this can best be done calls for the exercise 

of judgment, which must weigh competing 

interests and maintain an even balance. Landis 

Vo North American Co., 299 U.S. 248, 254-55, 

57 S.Ct. 163, 81 L.Ed. 153 (1936) (Cardozo, 

J.). In the exercise of its sound discretion, 

a court may hold one law suit in abeyance to 

78 
abide the outcome of another which may substantially affect it or be dispositive of the 

issues. Cf. American Life Ins. Co. v. Steward, 

300 U.S. 203, 215, 57 S. Ct. 377, 81 L. Ed. 605 

(1937). 

Bechtel Corp. v. Local 215, Laborers' International Union, 

544 F.2d 1207, 1215 (3d Cir. 1976). 

WHEREFORE to serve the interests of judicial economy, 

Petitioner respectfully opposes Respondent's Motion and 

requests that the presiding Administrative Law Judge continue to stay these proceedings in accordance with Petitioner's Motion to Hold in Abeyance, filed January 15, 

1980. 

IN THE ALTERNATIVE, Petitioner requests that if 

Respondent's Motion is granted, that the Secretary's 

case be dismissed without prejudice. 

Citation Nos. 0630044 and 0630045 

This case involves two citations charging violations of section 103(f) 

of the Federal Mine Safety and Health Act of 1977 (the Act). Section 103(f) 

reads in part: 

Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by 

his miners shall be given an opportunity to accompany the 

Secretary or his authorized representative during the physical 

inspection of any coal or other mine made pursuant to the 

provisions of subsection [103](a) * * *· [O]ne such representative of miners who is an employee of the operator shall 

be entitled to suffer no loss of pay during the period of 

such participation under the provisions of this subsectiono 

In Kentland-Elkhorn Coal Corporation, 1 FMSHRC 1833 (November 30~ 1979)» 

appeal pending No. 79-2536 (D.C. Cir., December 21, 1979), the Federal Mine 

Safety and Health Review Commission interpreted the section 103(f) so-called 

walkaround pay provision to apply to section 103(a) "regular" inspections 

onlyo In reaching this decision, the Commission relied on its reasoning in 

Helen Mining Companyi 1 FMSHRC 1796 (November 21, 1979), pending Noo 

79-2537 (D.C. Ciro December 21, 1979). In Helen Minin ~ the Commission held that a miner was not entitled under section to walkaround pay for spot inspections pursuant to section 103(i) of the Act and 

noted that compensation was due only for a miner's accompaniment of a Federal inspector during a section 103(a) "regular" inspection. The Commission concluded therein that "regular" inspections were those described in 

the third sentence of section 103(a) of the Act, i.e., the four required 

annual inspections of underground mines and the two-required annual inspections of surface mines. 

79 
There is no disagreement between the parties in this case that the 

inspections giving rise to the citations were haulage inspections and not 

"regular" inspections within the framework of the Kent.land-Elkhorn and 

Helen Mining decisions. Under the rule of law set forth by the Commission 

in Kentland-Elkhorn and Helen Mining, SOHIO is entitled to summary decision 

as a matter of law. 

ORDER 

Citation Nos. 0630044 and 0630045 are VACATED. The proceeding is 

DISMISSED. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

David E. Street, Esq., Office of the Solicitor, U.S. Department of Labor, 

Room 14480-Gateway Building, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

David M. Cohen, Esq., American Electric Power, P.O. Box 700, Lancaster, 

OH 43130 (Certified Mail) 

80 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JA~ 2 i \982 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

KAISER CEMENT CORPORATION, 

Respondent 

ERRATA 

Civil Penalty Proceedings 

Docket No. CENT 80-306-M 

A/O No. 41-00038-05007 

Docket No. CENT 80-354-M 

A/O No. 41-00038-05008-I 

Longhorn Cement Plant 

This is to correct a typographical error on Page 14 of the decision 

and order. An assessment·of $100 was shown for Citation No. 172311, included in a list of four Citations, and Respondent was ordered to pay a 

total sum of $400. This assessment is deleted since Citation No. 172311 

was dismissed because of inadequacy of proof as discussed on Pages 8 and 

9 of the decision. 

The order is amended to read "Respondent is ORPERED to pay Petitioner 

the sum of $300 within 30 days of the date of this order" • 

Distribution~ 

. // / fJ {?..J.-.- I '-/flt~ (.;. v,.Lat~/-

Forrest E. Stewart 

Administrative Law Judge 

Donald W. Hill, Esq., Office of the Solicitor, U.S. Department of Labor, 

555 Griffin Square Building, Suite 501, Dallas, TX 75202 (Certified 

Mail) 

Robert E. Bettac, Esq., Foster & Associates, Inc., Suite 1313, National 

Bank of Commerce Building, San Antonio, TX 78205 (Certified Mail) 

81 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 60204 

--------> JAN 2 21982 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), on 

behalf of DANIEL G. JENKINS, and, 

THOMAS S. PERRY, 

Complainants, 

v. 

KAISER CEMENT CORPORATION, 

Respondent. 

) 

) COMPLAINT OF DISCRIMINATION 

) 

) DOCKET NO. WEST 80-463-DM 

) 

) MD 80-87 

) MD 80-88 

) 

) MINE: Kaiser Cement 

) 

) 

) ~~~~~~~~~~~~~~~~~~~ 

DECISION 

APPEARANCES: 

Phyllis K. Caldwell, Esq., Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 

For the Complainants 

Roger Zeltmann, Director Labor Relations, Kaiser Building 

300 Lakeside Drive, Oakland, California 94612 

For the Respondent 

Before: Judge Virgil E. Vail 

STATEMENT OF THE CASE 

The Secretary of Labor (hereinafter the Secretary) brought this action 

on behalf of Daniel G. Jenkins and Thomas S. Perry alleging that Jenkins 

and Perry were unlawfully discharged. Respondent contends that Jenkins and 

Perry were discharged for insubordination. 

Pursuant to notice, a hearing was held on June 3, 1981, in Helena, 

Montana. During the initial proceedings the complainant Thomas S. Perry 

and respondent entered into a settlement agreement which was presented to 

the undersigned and approved. This settlement agreement was subsequently 

reduced to writing and approved in a partial settlement order dated 

September 18, 1981. 

At the hearing, Daniel G. Jenkins testified on his own behalf. Carl 

Lane and Wes Banta, both employees of the respondent testified on 

respondent's behalf. The respondent also offered the testimony of Thomas 

D. Short and Bill Lavelle. 

Post-hearing and reply briefs were filed by both parties. 

82 
STIPULATIONS 

At the hearing the parties offered the following stipulations: 

1. The Federal Mine Safety and Health Review Commission has 

jurisdiction in this proceeding. 

2. Kaiser Cement is a surface metal, non-1netal mine. 

3. Kaiser Cement has not previously had a discriminatory discharge 

case before the Commission. 

4. Kaiser Cement produces 350 to 400 thousand tons of cement annually 

and employed 95 people, including 71 hourly employees. 

ISSUES 

1. Is the complaint of Daniel G. Jenkins barred by the time 

restrictions, as contained in § lOS(c) of the Federal Mine Safety and 

Health Act of 1977 (hereinafter the Act)? 

2. Was Daniel G. Jenkins unlawfully discharged in violation of 

§ lOS(c) of the Act, now codified at § 30 U.S.C. 815(c)(l)? 

FINDINGS OF FACT 

Based on the testimony and evidence presented at the hearing, I make 

the following findings of fact: 

1. Daniel G. Jenkins was employed by the respondent from 1963 until 

the time of his discharge on February 14, 1980. (Tr. 28). At the time of 

his discharge, Jenkins was employed as a heavy equipment operator. 

2, On February 14, 1980, Carl Lane, the quarry superintendent, told 

Jenkins that he was to load holes with explos (Tr, 113). 

3. Jenkins refused to load the holes, relying on a union safety 

agreement, allegedly entered into at a union meeting in August 1979 (Tr. 

33 and 113). Jenkins introduced at the hearing a copy of notes he had 

taken at the meeting (P's Exhibit 2).!_/ 

4, 

indust 

holes. 

After Jenkins refusal, he and Lane went to Wes Banta 1 s office, the 

al relations superintendent, to discuss Jenkins refusal to load the 

5. The following people were present at the meeting: Jenkins, Perry, 

Banta, Lane and the union president, Bryon Johnson (Tr. 30). 

1/ Jenkins notes state as follows: Heavy Equipment loading holes. Cannom 

will tell Carl from safety factor nobody will load holes but the powder 

man unless he is sick or on vacation. 

83 
6. At the meeting, Jenkins reiterated his pos1t1on that he was not 

required to load explosives, based on a Step III grievance ·meeting. 

However, Banta could find no reference to such an agreement in his notes, 

nor did complainant offer any testimony other than his own to support his 

position (Tr. 136). 

7 •. Banta told Jenkins he would have to produce evidence of the 

agreement and suggested that he go ,ahead and load the holes and then file a 

grievance with the union. 

8. Jenkins still refused to load the holes and asked Banta how long a 

suspension he would receive for his re~usal. Banta told him that his · 

actions were more serious than a suspension and he would probably be discharged. At that time, Jenkins told Banta he was going to MSHA because of 

safety reasons. (Tr. 137) Banta requested Jenkins tell him what he thought 

was unsafe about the loading, but Jenkins did not offer a reply (Tr. 137). 

9. Jenkins did not express any fear to either Lane or Banta (Tr. 48 

and 138). The only reference to safety was made when Jenkins said he was 

going to MSHA (Tr. 138). 

10. Jenkins was discharged on the ground of insubordination. 

DISCUSSION 

The complaint of discrimination on behalf of Jenkins was filed by the 

Secretary on September 8, 1980 alleging that the act of discrimination 

occurred on or about February 15, 1980. Respondent contended that the 

Corrnnission therefore did not have jurisdiction because the complaint was 

not filed within 90 days, as required by the Federal Mine Safety arid Health 

Act of 1977, 30 U.S.C. 801, ~seq., Sept 1, 1977 (hereinafter referred to 

as the Act). 

The relevant part of the Act provides as follows: 

§ 105(c)(2) Any miner or applicant for employment or representative of miners who believes that he has been discharged, interfered with, or otherwise discriminated 

against by any person in violation of this subsection may, 

within 60 days after such violation occurs, file a complaint 

with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall forward a copy 

of the complaint to the respondent and shall cause such investigation to be made as he deems appropriate. Such investigation shall commence within 15 days of the Secretary's 

receipt of the complaint, and if the Secretary finds that 

such complaint was not frivolously brought, the Connnission, 

on an expedited basis upon application of the Secretary, 

84 
shall order the immediate reinstatement of the miner 

pending final order on the complaint ,,, 

(3) Within 90 days of the receipt of a complaint filed 

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

the miner, applicant for ·employment, or representative of 

miners of his determination whether a violation has occurred. 

At the hearing, the undersigned ruled that the Commission had 

jurisdiction. It has been held that filing deadlines are jurisdictional in 

nature and failure to comply with the filing requirements should not result 

in dismissal of discrimination proceedings. Secretary of Labor, on behalf 

of Gary M. Bennett v. Kaiser Aluminum and Chemical Corporation 2 MSHA 1424 

(1981), Christian v. South Hopkins Coal Co., 1 FMSHRC 126 (1979) and U.S. 

CODE CONG. & AD. NEWS at 3436. Therefore, I held that the delay in filing 

the complaint in this matter did not deprive the Commission of 

jurisdiction. 

Turning to the merits of this case the statutory prov1s1on, Section 

lOS(c)(l) of the Act, now codified at § 30 U.S.C. 815(c)(l), provides as 

fol lows: 

§ 105(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 9 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, 

The Commission has ruled that to establish a prima facie case for a 

violation of § lOS(c)(l) of the Act a complainant must show by a preponderance of the evidence that (1) he engaged in a protected activity and 

85 
(2) that the adverse action was motivated in any part by the protected 

activity. The employer may affirmatively defend, however, by proving by a 

preponderance of all the evidence that, although part of his motive was 

unlawful, (1) he was also ~otivated by the miner's unprotected activities, 

and (2) that he would have taken adverse action against the miner in any 

event for the unprotected activiti.es alone, David Pasula v. Consolidation 

Coal Company 2 FMSHRC 2786 (1980). Rev'd on other grounds, No. 80-2600 (3d 

Cir. October 30, 1981). 

The first question to be addressed is whether complainant, Jenkins, 

was engaged in a protected activity. There is no doubt that many mining 

activities are inherently dangerous. This is particularly true in a 

situation such as the one presented here, where employees are handling 

explosives. However, the fact that there is a danger presented by. the job 

assignment does not automatically bring it within the bounds of "protected 

activity. " 

There was conflicting testimony presented as to whether Jenkins had 

ever voiced his concern over the safety hazards presented by loading explosives. Jenkins had been given on the job training on how to load holes. 

In fact Jenkins, through his own testimony, stated that he had assisted the 

powderman and done actual loading of explosives a total of 156 hours 

through June 23, 1979 (Tr. 52-53). He further testified that he had loaded 

shot 9 times when he had been the "head man" (Tr. 53) •. Jenkins also 

testified that his refusal to do the work on February 14, 1980, was based 

on the alleged union agreement (Tr. 46). The agreement was never proven 

and the fact that Jenkins thought that there was an agreement that heavy 

equipment operators did not have to load holes does not bring him within 

the sphere of protected activity, as defined in the Act. 

Jenkins testified that because the respondent had made changes in the 

type of explosives used, he was concerned over his own safety and the 

safety of other employees. The evidence proves, however, that Jenkins did 

have experience with the new types of explosives and just one month prior 

to his discharge had worked with the new style of boosters and primadets 

(Tr. 32 and 122). The respondent 1 s on the job training program had 

received MSHA approval (Tr. 126). Jenkins had received the required amount 

of training and had in fa.ct complained to Lane that he was doing too much 

of the loading and that the job should be equalized between himself and 

Thomas S. Perry, the other heavy equipment· operator. 

It was proven that Jenkins had never been in charge of loading since 

the change in products had been made. In January of 1980 he had assisted 

the powderman, which meant helping to haul the powder and explosives out 

and tying knots. Being in charge meant that he.would supervise the loading 

and follow the ',shot plan 1 prepared by Lane (Tr. 132). Lane testified that 

after 3 or 4 shots someone is qualified to load (Tr. 128). Jenkins never 

asked for assistance or expressed any fear of doing the work. 

86 
I cannot conclude that Jenkins refusal to do the assigned task was 

protected activity. The preponderance of the evidence shows that Jenkins 

refusal to load explosives was based on an agreement he actually thought 

was in existence that would have excluded anyone within his job classification from doing such work. The existence of such an agreement was never· 

substantiated. ·The complainant did produce his notes he alleged were taken 

at the August 1979 meeting. However, no notes were found in the official 

records of respondent of such an agreemerit and testimony by respondent's 

witnesses denied knowledge of such an agreement, Jenkins did not express 

any fear regarding his refusal to work with explosives to Lane or Banta on 

the day involved herein (Tr. 48 and 94). It was after Jenkins refused to 

comply with the instruction of Lane and Banta to load explosives, that 

Banta said, 11 as far as I am concerned you are through" (Tr. 95). It was 

following this statement by Banta that Jenkins indicated he would contact 

MSHA. The uncontroverted chain of events shows that the reason for the 

discharge of Jenkins was his continued refusal to work after respondent had 

looked for the alleged agreement that heavy equipment operators were exempt 

from such work. I find, in view of Jenkins past experience in handling 

explosives, that this was unreasonable and not protected activity. If the 

discharge had been based upon Jenkins threat to contact MSHA, I would find 

that to be protected activity. However, as stated above, the complainant 

was on his way out the door after being told he was through when he voiced 

this remark. 

After the hearing, respondent submitted a copy of the arbitration 

decision concerning Jenkins discharge. The Secretary moved to strike the 

decision from respondent's brief. The Secretary's motion is hereby GRANTED 

and the undersigned states that he has not read nor is his decision in 

anyway influenced by the arbitrator's findings or conclusions. 

CONCLUSIONS OF LAW 

l, Complainant 1 s action is not barred by the time limitations in the 

Act, 

2, Respondent did not violate § lOS(c) when it discharged complainant 

for insubordination, 

ORDER 

It is ORDERED that the comp la int of Daniel G, Jenkins be and is hereby 

DISMISSED, 

"---

c~,·~ / ~-~--/· . /l <· c· az,,c_j(j 

'--r ~ 

Virgil ,,E/ Vail 

AdminiM:'rative Law Judge 

87 
Distribution: 

Phyllis K. Caldwell, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Roger Zeltmann, Director 

Labor Relations, Kaiser Building 

300 Lakeside Drive 

Oakland, California 94612 

88 
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-Respondent 

v. 

SCOTIA COAL COMPANY, 

Respondent-Applicant 

Civil Penalty Proceedings 

Docket Nos. BARB 78-609-P 

BARB 78-609-P(B) 

BARB 78-610-P 

Applications for Review 

Docket Nos. BARB 78-306 

through BARB 78-333 

DECISION AND ORDER 

In the aftermath of the twin methane gas explosions of 

March 9, 11, 1976 that took the lives of 23 miners and 3 

mine inspectors at the Scotia Mine in Ovenfork, Letcher 

County, Kentucky, the Secretary of the Interior cited Scotia 

Coal Company, a wholly owned subsidiary of Blue Diamond Coal 

Company, Knoxville, Tennessee for 71 violations of the 

deral Coal Mine Health and Safety Act of 1969. 1/ Two 

years later, civil penalties were assessed in the amount of 

$266,404. 

The 43 less serious violations were settled in December 

1980 for $33,400, subject to approval of the trial judge. 

By order of February 25, 1981, the trial judge, with the 

1/ In March 1978, responsibility for enforcement was shifted 

rrom the Secretary of the Interior to the Secretary of Labor 

and from the Mining Enforcement and Safety Administration 

(MESA) to the Mine Safety and Health Administration (MSHA). 

30 U.S.C. § 801, et~·, (Supp. I 1977). 

-89 
consent of the parties, increased the settlement amount to 

$36,400 and dismissed these 43 charges. 

The 28 captioned review-penalty proceedings cover the 

15 conditions and practices believed by the Secretary to 

have contributed directly to the lethal accumulation of 

methane gas and the ignition that caused the first explosion, ~/ plus one combustible and 12 electrical violations 

uncovered during the course of the departmental investigation 

that were believed to be indicative of a pervasive indifference to safe mining practices. 

These 28 unwarrantable failure to comply violations were 

initially assessed at $230,500. On Thursday, November 12, 

1981, the parties entered into a settlement agreement under 

which Scotia offered to pay the lump sum of $200,000, or 87% 

of the amount initially assessed, which sum was allocated by 

the Secretary in accordance with his evaluation of the 

"individual meaning and collective significance of the 

violations" for the 1976 disaster. 

2/ Responsibility for the second explosion, at a time when 

the government was in control of the mine, is the subject of 

separate litigation between Blue Diamond and the Department 

of Just . Claims brought by the survivors of the miners 

killed in the first explosion were settled for approximate 

6 million dollars in 1980 and by survivors of the victims o 

second explosion approximately 2 million dollars in 

1981. Bog~s v. Blue Diamond Coal Compant, 590 F. 2d 655 

(6th Cir.979). In the pending crimina case, the United 

States seeks the imposition of $240,000 in criminal penalties 

against the corporate mine operators. United States v. 

Blue Diamond Coal Company, F. 2d , No. 80-5084, 6th 

Circuit, decided December 1~1981. 

90 
The sum offered in settlement will be the largest ever 

paid by a mine operator for civil penalties assessed as the 

result of a single coal mine disaster. 3/ 

Except as other indicated, my evaluation and allocation 

of the $200,000 accords with that recommended by the Secretary. ~/ 

I fully concur in the Secretary's overall evaluation of 

the gravity of these violations, namely, that "When viewed 

in the light of the underlying mine practices and the events 

of March 9, 1976 ... the violations, individually and 

collectively are seen as extremely grave, occuring through 

culpable negligence, the products of reckless management 

attitudes and a method of operation which demonstrated 

indifference to federal safety standards." 2_/ 

ll When the present settlement proposal, $200,000, is added 

to the sum already paid, $36,400, the mine operators will 

have paid a total of $236,400 in civil penalties which is 

89% of MESA's initial assessment for the 71 violations 

d. 

The Secretary's evaluation appears in counsel 1 s motion 

approve settlement which incorporated by reference counsel is 

earlier response to the trial judge's pretrial order of 

May 1, 1980. Counsel for the Secretary is to be commended 

the clarity of expression and organization of these 

p adings and for the diligence demonstrated their 

preparation. 

5/ is the Secretary's position that both Blue Diamond 

Coal Company and Scotia Coal Company were responsible for 

safety violations at the Scotia Mine. 

91 
I. 

A. 

For the 15 contributory violations, which include the 

six violations covered by the pending criminal indictment, 6/ 

the Secretary assessed the maximum statutory amount of 

$10,000 each, finding that "The violations cannot be viewed 

in isolation, but must be considered within the context of 

mine management's attitude, which condoned and even fostered 

the simultaneous existence of so many serious, related 

violations. The deadly interaction of these violations 

produced the tragic results." 

6/ On June 25, 1979, a Federal Grand Jury in Pikeville, 

Kentucky handed down an indictment charging Blue Diamond and 

Scotia Coal Companies with six criminal violations of the 

Mine Safety Law. Four counts charge a willful failure to 

comply with tl1e ventilation plan for the Scotia Mine and to 

make required inspections and examinations for potentially 

explosive concentrations of methane gas. The mine operators 

are also charged with two counts of making knowingly false 

statements in records required to be maintained with respect 

to its ventilation and examination practices. 

On February 19, 1980, Judge Hermansdorfer of the United 

States District Court for the Eastern District of Kentucky 

granted the mine operators motion to suppress evidentiary 

records on the ground that their seizure violated the mine 

operators' rights under the Search and Seizure Clause of the 

Fourth Amendment. The United States appealed the suppression 

order and on December 17, 1981, the Court of Appeals for the 

Sixth Circuit reversed the decision of the District Court 

finding that the warrantless seizure of statutorily required 

records from the office of a coal operator is not violative 

of the Fourth Amendment. United States v. Blue Diamond 

Coal Company, supra. The mine operators will reportedly 

petition the court for a rehearing and may seek a review of 

the matter by the Supreme Court. Past and prospective 

delays in the criminal proceeding vindicate the Commission's 

decision to deny the mine operators a stay of the civil 

penalty proceedings pending final resolution of the criminal 

proceedings. Scotia Coal Mining Company, 2 FMSHRC 622; 

1 MSHC 2327 (1980). ·· 

92 
I concur in this finding and in the Secretary's further 

finding that: 

The ultimate illustration of the destructive reinforcement of related violations occurred in the explosion 

area of 2 Southeast Main. To begin with, Scotia failed 

to comply with its approved Ventilation Plan when 

starting the 2 Left Section off 2 Southeast Main. 

Ventilation in the area was questionab , at best, and 

had not received MESA approval, although Scotia knew 

that such approval was required. (The proposal, had it 

been submitted, would not have been approved.) Production in 2 Left Section should have proceeded only after 

positive, permanent ventilation controls had been 

installed. By using a makeshift temporary curtain 

before it completed construction of overcasts, Scotia 

ignored prudent ventilation methods, as well as federal 

standards, for the sake of a short-term production 

gain -- a gain as it turned out, achieved at a terrible 

ce. 

Even assuming (as Scotia claims) a check curtain was 

hung at the intersection of 2 Left Section with 2 

Southeast Main, the lack of permanent ventilation 

controls at that point created the potential for a 

dangerous short-circuit of intake air and a ventilation 1 dead end' at the inby end of 2 Southeast Main. If the 

check curtain was installed, it was reportedly maintained in such a haphazard manner as to provide little, 

if any, ventilation control, thus enhancing the potential 

for a short-circuit of air. Then, the night before the 

explosion occurred, plastic curtains were hung in the 

Nos. 4 and 5 entries (the intake aircourses) of 2 

Southeast Main inby the 2 Left Section, thus aggravating the risk of methane accumulation in the area. 

Another violation of Scotia's Ventilation Plan, together 

with another ventilation dead end was found at the inby end 

of Northeast Main. The Secretary assessed maximum penalt s 

for se violations as well as for a violation which charged 

that on March 1, 1976, Scotia knowingly submitted to MESA a 

93 
mine map which concealed those conditions and compounded the 

hazards created by the violations of Scotia's Ventilation 

Plan. When considered in the context of Scotia's pattern of 

violations, I find this action fully warranted. 

B. 

To its hazardous ventilation practices, the Secretary 

found Scotia added a reckless indifference to its obligation 

to inspect and examine idle or dead end areas for explosive 

accumulations of methane gas. Another violation maximally 

assessed charged that on the morning of March 9, 1976, the 

dead end area of 2 Southeast Main, an area which had been 

idle since February 9, 1976, was not examined for a deadly 

methane accumulation prior to the time two miners were 

ordered to haul a load of steel rails into the area using 

two Jocomotives with electrical connections capable.of 

causing an incendive spark. Jj The Secretary's evaluation, 

in which I concur, states: 

Scotia's failure to examine 2 Southeast Main inby 

2 Left Section on March 9, 1976, is particularly 

glaring since management knew that the entire 2 

Southeast Main, including 2 Left Section, was 

being ventilated in violation of Scotia's approved 

Ventilation Plan, and the potential existed for a 

dangerous short-circuit of intake air and a vencilation 1 dead end 7 • 

* * * . the management foreman who ordered th.e 

workmen to enter the area had a duty to verify 

that the area had been examined before the miners 

7/ An incendive spark is an electrical spark of sufficient 

fntensity to ignite a gas or other flammable material. 

94 
were to enter, or that the workmen were qualified 

and equipped to make such examinations. The failure to so verify or to have the examinations done 

constituted an unwarrantable failure on the part 

of mine management to comply with the standards, 

especially in view of the specific knowledge of 

management that the ventilation system in the 

2 Southeast Main area posed a potential for methane 

accumulation inby 2 Left Section. When the violation of Order No. 4 LDP is viewed in context 

with other major violations also present, this 

management failure to grasp the last chance to 

avoid culmination of the hazards it had created, 

starkly illustrates Scotia's reckless indifference 

t? federal safety standards. 

Violations of the preshift examination (methane checks) 

requirement were found in three of the five working sections 

of the Scotia Mine. The Secretary's view, in which I concur, 

was that: 

Taken together, and along with other examination 

violations, these violations reflect clear indifference to ··safety. Bu -otressing this disturbing conclusion is the evidence that Scotia emrloyed 

only one regular fireboss to make the preshift 

examinations required to be performed in the 

widely-dispersed working sections within three 

hours before beginning the 7:00 a.m., day shift. 

This employee's normal work shift ended at 

5:00 a.m., allowing only one hour of regular 

work time (between 4:00 a.m. and 5:00 a.m.) to 

perform all the examinations required before the 

day shift began. 

c. 

The constraints on the time and availability of a 

Fireboss resulted in a charge that it was allegedly the 

practice of the Fireboss to certify to preshift examinations 

that were not made or certainly not made by him. was, of 

course, the alleged failure to make preshift or onshift methane 

95 
checks in the idled section (the dead end) of 2 Southeast 

Main that set the stage for the explosion that occurred when 

the two locomotives came to a stop at the 31st crosscut at 

11:45 a.m., Tuesday, March 9, 1976. 

The final ingredient of the lethal mix that resulted in 

the disaster of March 9 was introduced when the Scotia 

mine's underground construction foreman arranged to have a 

motor crew pick up a load of rails with the Nos. 6 and 8 

battery-powered locomotives for delivery to the dead end of 

2 Southeast Main. This was the area in which ventilation 

had been totally blocked for six or seven hours on the 

ev2ning shift the day before by the installation of check 

curtains across the Nos. 4 and 5 (intake air) entries. ~/ 

8/ This was done to achieve temporary compliance with a 

notice of violation issued by a 1".IESA inspector between 3:30 

and 4:00 o'clock that afternoon. This citation issued when 

the inspector found less than 9,000 cubic feet of air per 

minute was sweeping the last open crosscut of the 2 Left 

Section. The notice was terminated about two hours later 

when the inspector remeasured the air flow and found it to 

be 10,472 feet per minute. The inspector, who was on the 

section for approximately seven hours, never attempted to 

determine how the additional 2,360 feet of air flow was 

achieved. MESA and the Secretary claim he was not authorized 

to inspect any area of the mine other than the 2 Left Section 

and therefore did not concern himself with the adequacy of 

the ventilation controls or with the short-circuit of the 

ventilation into the dead end area of 2 Southeast Main. Had 

he done so he might have discovered that in order to achieve 

compliance with his citation the operator had robbed air 

from 2 Southeast Main and that the entire section was being 

operated in violation of the approved Ventilation Plan. 

This arbitrary and somewhat incredible limitation on inspection activity deprived the miners of a last clear chance for 

the federal regulatory presence to intervene and to avert 

the disaster. 

96 
Although ventilation of some sort was restored around 

midnight on March 8, it was inby this ventilation stoppage 

that an explosive concentration of methane occurred before 

11:45 a.m., March 9. To my mind the intentional interruption of the air flow into an area known to liberate explosive 

concentrations of methane gas was an act of reckless endangerment that finds no excuse in the claimed negligence of MESA 

in failing to detect the action. For these reasons, I fully 

concur in the assessment of maximum penalties for these 

violations. 

D. 

When high enough concentrations of methane gas, 5 to 15 

percent, in an underground coal mine are associated with 

inadequate ventilation a'·.d an ignition source, a violent 

coal mine explosion is very likely to occur. '}_/ . 

9/ The legislative History of the Mine Safety Law reflects 

congressional concern for the danger of explosions resulting 

from ignition of undetected accumulations of methane in coal 

mines: 

The most hazardous condition that can exist in a coal 

mine, and lead to disaster-type accidents, is the 

accumulation of methane gas in explosive amounts. 

Methane can be ignited with relatively little energy 

and there are, even under the best mining conditions, 

numerous potential sources always present . . . Men 

working in the face areas where coal is mined and where 

fresh methane can be emitted in large volumes due to 

the disturbance of the coal bed, are required to take 

numerous safety precautions to insure that methane is 

not present in explosive amounts'. All equipment inby 

the last open crosscut must be of a permissible type, 

and frequent examinations, both preshift and onshift, 

are made to determine methane concentrations. The 

97 
According to the Secretary the "evidence is conclusive" 

that the ignition source in the case of the first explosion 

was on one of the battery-operated locomotives, and most 

likely the No. 6, (Goodman) locomotive. As the Secretary 

points out, "The evidence, which includes positive laboratory 

tests demonstrates that, on or within each locomotive, there 

were several potential ignition sources for an explosive 

methane-air mixture." 

In the case of the No. 6 (Goodman), locomotive, the 

Secretary claims a "copper wire 'bridge' was deliberately 

inserted in order to reactivate the circuit after the fuse 

element had broken." In the case of the No. 8, (Westinghouse) 

locomotive the Secretary's representatives claimed they 

"observed that electrical connections to the terminals of 

the locomotive batteries and between the batteries themselves, were neither mechanically nor electrically efficient, 

a condition chiefly due to the absence of suitable connectors." 

fno 9 (continued) 

present bill requires examinations for methane onshift 

at least once each coal producing shift, at the start 

of each coal producing shift before electrical equipment 

is energized, at least every 20 minutes during a shift 

when electrically operated equipment is energized 

before intentional roof falls are made, before explosives 

are fired, and before welding is done. When, on examination, methane concentrations exceed 1 volume percentum, 

changes must be made in the ventilation to reduce the 

methane content. When the methane concentration exceeds 

105 volume per centum, the electricity must be shut off 

in the section affected, and men withdrawn from the 

section until the methane content is reduced. H.R. 

Rep. No. 91-563, 9lst Cong. , 1st Sess. 21. 

98 
Neither of these violations, however, is believed by 

MSHA's experts to have been "the actual cause of the spark 

which ignited the methane gas of March 9. ti What the experts 

hypothesize is "that the accumulated methane gas was ignited 

by the arcing created by the open-type controller on the No. 

6 Goodman locomotive when the controller was turned to the 

toff' position by the locomotive operator after reaching his 

destination at the inby end of 2 Southeast Main." 

The controller, of course, is the device on electricallypowered locomotives that regulates speed and direction. 

Counsel for the Secretary suggests that the absence of a 

permissible, explosion proof controller on the No. 6 locomotive 

was not a violation because it was not taken inby the last 

open crosscut of 2 Southeast Main on March 9. Recent decisions 

by the Commission indicate that if the locomotives were 

manufactured as permissible equipment, as apparently they 

were, they may be deemed intended for use inby the last open 

crosscut and should, therefore, have been maintained in a 

permissible, i.e., explosion proof condition. 30 C.F.R. 

75.503, Peabody Coal Co., 1 MSHC 1700 (1978); Solar Fuel Company, 

3 FMSHRC 1384; 2 MSHC 1359 (1981). 

I concur in the maximum assessments for the two electriviolations on the locomotives because their presence (1) 

was indicative of a knowing disregard for voluntary compliance 

and (2) they or similar conditions completed the triad of 

circumstances that contributed directly to th~ explosion of 

March 9. 

99 
II 

A 

The Secretary allocated $42,500 of the proffered settlement 

sum among 12 electrical violations. These, while not believed 

to have contributed to the conditions which caused the 

explosion of March 9, 1976, created severe electrical shock 

hazards and potential sources for explosive ignitions. In 

his prehearing submission, the Secretary found these violations were "part of a pervasive failure" to comply and 

stated he believed, 

these violations were caused not only by a systemic 

failure in electrical maintenance, but also by the 

systemic failure to carry out examinations required by 

the Coal Act and its standards. A close look at these 

violations demonstrates they did not result from mere 

happenstance. Most were clear, unmistakable breaches 

of the electrical protections of the standards, and 

ironic evidence of Scotia's 'production at all costs' 

attitude; ironic because the investigation revealed 

that the mine electrical system, as originally purchased 

and installed, was high-grade. 

While the $42,500 allocated amounted to a 42% reduction 

in the amount initially assessed for these 12 violations, I 

that when viewed in the context of the total settlement 10/ 

the allocation made was reasonable. 

B 

The last violation covered by the proffered settlement 

involves an alleged excessive accumulation of float coal 

dust. Investigators found excessive float coal dust, which 

10/ The average per violation for the 28 violations is ~.142.85 which is the highest average ever paid for a 

comparable number of violations. 

100 
is highly explosive, deposited on rock-dusted surfaces for a 

distance of approximately 2,500 feet in the 1 West Main, 

running from the mouth of the main inby along the conveyor 

belt entry. The accumulation covered the layer of white 

rock dust to such an extent that the area appeared black in 

color, The belt roller, of course, provided a potential 

source of heat and ignition that could have caused a fire or 

explosion. The existence of this violation is another 

example of the operator's reckless disregard for voluntary 

compliance. The Secretary allocated $7,500 to the settlement of this violation which was the amount initially assessed 

by MESA. I concur in this action. 

III 

Had the result in these proceedings been achieved 

within two years after the Scotia disaster, it might have 

been cited as a triumph of effective enforcement. Coming as 

it does at this late date, in the context of new, multiple 

mine disasters, it may be further proof of the adage that 

laggardly enforcement and justice delayed is tragedy invited. 11 

11/ Existing and prospective budgetary restrictions raise 

the specte: of a de f~cto, if ~o~ a de jure, repeal of the 

Act .. Despite convention~l polit~c~l wisdom to the contrary, 

experience teaches.t~at in the mi~ing.industry, and especially underground coal mining, voluntarism is no substitute for . compulsory enforcement. The history of mine safety shows a 

fed7ral regulatorr presence is required to reduce disasterous 

accidents and achieve even a modicum of safety. 

101 
The enormity of the social and economic cost of these 

mine disasters compels I take note of the great and continuing 

hazards that both operators and miners face twelve years 

after enactment of the mandatory safety standards and 

almost six years after the Scotia Mine disaster. The latest 

news bulletins disclose that during the five-day period 

between December 3 and 8, 1981, 27 miners were killed in 

coal mine accidents and explosions and that deaths among 

underground coal miners in 1981 were the highest in seven 

years. Even as this is written a mine explosion at the 

R.F.H. Coal Company in Craynor, Kentucky is reported to have 

killed seven more miners for a total of 33 miners killed in 

less than two months. 

Meanwhile, MSHA has indicated that it intends to comply 

with the administration's budget-cutting plans by projecting 

the elimination of up to 150 underground coal mine inspectors, 

reducing the number of enforcement personnel from 1,629 to 

l,4790 12 At least 153 miners were killed on the job in 

U,S. coal mines during 1981, compared with 133 in all of 

1980. To reduce the enforcement effort by 10% when fatal 

accidents are up 15% represents the kind of callous illogic 

that intimately engaged in coal mine health and safety 

can endorse. 

12/ Due to action of the Congress, another 210 metal and 

nonmetal mine inspectors have been furloughed. 

102 
I also take cognizance of the fact that for no discernable reason the 1982 budget for the Federal Mine Safety and 

Health Review Commission was slashed by 28%, from $4.3 

million to $3.l million, and that the Commission, which is a 

vital link in the enforcement effort, suffered a 28% reduction 

in its support st and administrative law judges. This 

crippling blow to the prompt adjudication of enforcement 

cases will seriously disrupt the Commission's already limited 

ability to protect miners and to afford operators a forum 

for expedited determination of their challenges to erroneous 

closure orders and other enforcement actions. 

In the face of the rising rate of institutional manslaughter, the calls for further deregulation and relaxation 

of the enforcement effort seem unreal, if not morally 

irresponsible. 13 Several statistical studies have found 

that safety improves with the frequency of federal inspections. A study of 539 bituminous underground coal 

mines pro more than 100,000 tons annually indicated a 

13/ The importance of the federal enforcement effort is 

well recognized by the miners, especially the nonunion 

miners. As one West Virginia miner put it, "The only thing 

keeping the ro o your back when you're two miles underground is Government regulations." See "Miners, Mr. President, 

Are Not Sl ", Op. Ed. Page, N.Y. Times, Sunday, January 24, 

1982. 

14/ Low Productivity in American Coal Mining: Causes and 

CUres, GAO Rpt. EMD 81-17, March 3, 1981, at 55-56. 

103 
50% increase in federal inspection rates would result in 11 

fewer fatalities, 2,400 fewer disabling injuries, and 3,800 

fewer nondisabling injuries per year. 15/ 

The staggering fact is that over 2,000 miners have been 

killed since Congress passed the Mine Safety Law in 1969. 

The statistics show this is the worst occupational safety 

record of any major industry and that laxity in the enforcement effort has resulted in a sharp reversal of the improvements of the last few years. It is time we stopped regarding 

the rising tide of deaths and disabling injuries with 

complacency. Something must be done and done quickly to 

correct the low level of morale at both the inspectorate and 

adjudicatory levels. 

IV 

Notwithstanding my misgivings and the absence of any 

assurance that corporate management's attitude toward mine 

safety has changed, 16/ an independent evaluation and de 

novo review of the entire administrative record including 

15/ The Direct Use of Coal, Office of Technology Assessment, Congress of the United States, (1979), at 283. 

16/ Counsel for Scotia have always stoutly maintained that 

because MESA was in pari delicto, the operator culpability, 

if any, was extremely low. Counsel have made clear that the 

settlement is proffered solely in the interest of conserving 

their clients financial resources and not out of any sense 

of social remose or responsibility. 

104 
the MESA "Report of the Scotia Mine Disaster," 17/ the 

Secretary of Labor's Verified Statement to Judge Hermansdorfer 

concerning the same and the mine operators' comments thereon, 

leads me reluctantly to conclude the settlement proposed is 

in accord with the purposes and policy of the Act. 

17/ This report was received in camera and has never been 

publicly released because of an-outstanding suppression 

order issued by Judge Hermansdorfer in January 1978. Since 

the report is not admissible in the criminal case and most 

of the civil litigation has been settled, I strongly recommend 

the Department of Justice seek vacation of the suppression 

order. My independent review of the matter leads me to 

conclude that while the report, as supplemented, is not 

perfect, it is trustworthy. Furthermore, the conclusions 

reached at p. 57 are supported by a preponderance of the 

reliable, probative and substantial evidence in the administrative record considered as a whole. This is not to say 

that ventilation problems were not either undetected or 

ignored by MESA or could not have been, by the exercise of 

greater diligence or suspicion, discovered. Nevertheless, 

two wrongs do not make a right, nor is the public interest 

served by suppressing the report because a court arguably 

believed MESA tried to coverup its own wrongdoing at the 

expense of the mine operators. The law places primary 

responsibility for compliance on the mine operators. With 

all due deference to Judge Hermansdorfer, my independent 

review of the administrative record leads me to conclude 

that actors other than God and MESA were primarily responsible 

for the concentration of methane gas that exploded at the 

31st crosscut of the 2 Southeast Main Section of the Scotia 

Mine at 11:45 a.m., Tuesday, March 9, 1976. 

105 
Accordingly, it is ORDERED that the motions to approve 

settlement and to withdraw the challenges to the validity of 

the orders be, and hereby are, GRANTED. It is FURTHER 

ORDERED that the operator pay the amount of the settlement 

agreed upon, $200,000, on or before Monday, March 1, 

1982, and that subject to payment the captioned matters be 

DISMISSED. 

Distribution: 

Robert I. Cusick, M. Stephen Pitt, Richard C. Ward, Esq. , Wyatt, Tarrant & Combs, 2700 Citizens Plaza, Louisville, 

KY 40202 (Certified Mail) 

Lawrence W. Moon, Jr., Esq., Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Blvd., Arlington, 

VA 22203 (Certified Mail) 

Randall Scott May, Esq., Craft, Barret & Haynes, 113 

Lovern St., Drawer 1017, Hazard, KY 41701 (Certified 

Mail) 

106 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JAN 27 \982 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 81-368 

A.O. No. 46-01968-03077 

Blacksville No. 2 Mine 

DECISION 

Appearances: Covette Rooney, Attorney, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the petitioner; Jerry 

E. Palmer, Esquire, Pittsburgh, Pennsylvania, for the 

respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a petition 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 issued pursuant 

to the Act and the implementing mandatory safety and health standards. 

Respondent filed a timely answer in the proceedings and a hearing 

regarding the petitions was held on July 29, 1981, before Judge John F. 

Cook, in Oakland, Maryland and the parties appeared and participated 

therein. The parties waived the filing of post-hearing arguments, but 

were afforded the opportunity to make arguments on the record. Subsequent 

to the conclusion of the hearing, the case was reassigned from Judge Cook 

to me for completion. Accordingly~ I have decided this case on the basis 

of the record made before Judge Cook, including full consideration of all 

of the evidence of record and the arguments made by the parties at the 

hearing. 

Issues 

The principal issues presented in this proceeding are: (1) whether 

~espondent has violated the provisions of the Act and implementing 

regulations as alleged in the proposal for assessment of civil penalties 

10~ 
filed in this proceeding, and, if so, (2) the appropriate civil penalty 

that should be assessed against the respondent for the alleged violatjn~s 

based upon the criteria set forth in section 110 (i) of the Act. Addit ... mal 

issues raised by the parties are identified and disposed of in the course 

of this decision. 

In determining the amount of a civil penalty assessment, section 

llO(i) of the Act requires consideration of the following criteria: (1) 

the operator's history of previous violations, (2) the appropriateness 

of such penalty to the size of the business of the operator, (3) whether 

the operator was negligent, (4) the effect on the operator's ability to 

continue in business, (5) the gravity of the violation, and (6) the 

demonstrated good faith of the operator in attempting to achieve rapid 

compliance after notification of the violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164, 

30 U.S.C. § 801 et~· 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 CFR 2700.1 et seq. 

Discussion 

Citation No. 852152, issued on January 5, 1981, and alleges a 

violation of 30 CFR 75.601. Judge Cook approved a settlement payment 

in the amount of $195, which is for the full amount of the original 

assessment (Tr. 11). 

Citation No. 852149, issued on January 5, 1981, and alleges a 

violation of 30 CFR 75.400. Petitioner's counsel proposed a settlement 

for the full amount of $275 which was assessed for this violation, and 

in support of the proposed settlement presented arguments concerning 

the six statutory criteria found in section llO(i) of the Act on the 

record (Tro 11-13)" Judge Cook rejected the proposed settlement 

(Tr. 14, 20). The parties then re-submitted the proposed settlement 

on the record by means of an amendment to reflect an agreed upon settlement 

payment of $400 for this citation, and Judge Cook advised the parties 

to file a motion with him (Tr. 24), Subsequently, by motion filed 

with Judge Cook on August 13, 1981, the parties seek an approval of 

the proposed settlement in the amount of $400. 

With regard to Citation No. 852151, which was issued on January 5, 

1981, for an alleged violation of 30 CFR 75.200, Judge Cook rejected 

the proposed settlement and directed the parties to proceed with the 

hearing on this citation and testimony and evidence was presented in 

this regard (Tr. 27-53). The parties waived the filing of written 

post-hearing proposed findings and conclusions, but were permitted to 

make oral arguments in support of their respective positions on the 

record. They also stipulated as to certain matters on the record, and 

presented evidence concerning the six statutory criteria found in 

section llO(i) of the Act (Tr. 24-27). These stipulations are as follows: 

108 
1. The Blacksville No. 2 Mine is owned and operated by the 

respondent and it is subject to the provisions of the Act. 

2. The presiding Judge has jurisdiction in this matter and 

the subject citation was properly served by a duly authorized 

representative of the Secretary of Labor upon an agent of 

the Respondent at the date, time and place stated therein, and 

may be admitted into evidence for the purpose of establishing 

its issuance and not for the truthfulness or relevancy of any 

statement asserted therein. 

3. The assessment of a civil penalty in this proceeding will not 

affect the Respondent's ability to continue in business. 

4. The appropriateness of the penalty, if any, and the size 

of the coal operator's business should be based on the fact 

that the size of the company is 42,357,271 production tons, 

and the size of the mine is 2,264,105 production tons annually. 

With regard to the history of Respondent, with respect to 

Citation 852151, there were 586 prior violations during 

the 24 month period preceding the issuance of the citation. 

There were 719 inspection days. During the same period there 

were 23 violations of 30 CFR 75.200. 

5. The parties further stipulate the authenticity of their 

exhibits but n :·t the truth of the matters asserted therein. 

Findings and Conclusions 

Citation No. 852152, January 5, 1981, 30 CFR 75.601 

I adopt Judge Cook's previous approval of the settlement proposed 

by the parties for the full amount of $195 initially assessed for this 

citation, 

I have fully considered the motion and supporting arguments filed 

by the on August 13, 1981, seeking approval of a proposed 

settlement in the amount of $400, for this citation and it is APPROVED. 

Fact of 

charged with a violation of the roof control requirements of safety standard section 75.200, in that the inspector 

observed some roof conditions which required additional roof support in 

a cross-cut in the 5 South section. Inspector Fred Rundle testified 

as to the conditions which he found and confirmed that he issued the 

citation after inspection of the areas described in the citation which 

he issued on January 5, 1981. He stated that he tested the roof, 

109 
found it to be 11 drummy11 , and instructed the section foreman to danger 

the area off until additional support could be installed (Tr. 28-29). 

He also confirmed that he measured the distances referred to in the 

citation, and testified that the area in question was a travelway used 

by miners for work and travel (Tr. 30). In his view, the conditions 

which he observed failed to provide adequate roof protection, but that 

once the conditions were corrected they did. He also stated that at 

the time he observed the roof it was "working", that is, some of the 

roof strata had broken loose and was dripping. If the roof posts had 

not been installed, he believed the roof would have fallen in and caused 

serious inJuries. He gave the respondent an hour to abate and eight 

posts were installed to support the roof. He also believed that the 

conditions should have been detected during the preshift or onshift 

inspections (Tr. 31-32). 

On cross-examination, Mr. Rundle testified that the roof control 

plan was not being complied with, that he saw two men traveling in the 

unsupported roof area. He also indicated that no mining was taking place, 

that abatement was achieved rapidly, and that four men out of the seven 

man crew were used to abate the citation. He also confirmed that the 

section had been idle for five days prior to the time of his inspection, 

and that while adverse roof conditions can occur at any time, he believed 

the roof conditions in question were present at least three days or 

possibly shorter (Tr. 32-35). 

Respondent offered no rebuttal testimony or evidence with regard 

to the citation, and upon careful review and consideration of the testimony 

and evidence adduced by the petitioner in support of its case I conclude 

and find that petitioner has established a violation of section 75.200, 

and the citation is AFFIRMED. 

Size of Business and Effect of Civil Penalties on Respondent's Ability 

to Continue in Business. 

I find that the respondent is a large mine operator and I adopt the 

by the parties that the penalty assessed in this case will not 

adversely affect respondent's ability to remain in business, 

Good Faith Compliance 

The record supports a finding that respondent achieved rapid compliance 

in correcting the adverse roof conditions once they were brought to its 

attention and this is reflected in the penalty assessed by me in this case. 

I find that the adverse roof conditions described by the inspector 

in this case presented a hazard of a possible roof fall and endangered 

at least two or more miners who would have been in danger had the roof 

area cited in this case fallen before the inspector acted and_ dangered it 

off, Accordingly, I conclude that the violation was very serious and 

this is reflected in the penalty assessed by me in this case. 

110 
Negligence 

I conclude that the record supports a finding that the respondent 

failed to exercise reasonable care to prevent the conditions cited 

by the inspector and that its failure in this constitutes ordinary 

negligence. While it is true that the section may have been idle, as 

soon as the shift in question began working again any preshift or onshift 

inspection should have detected the adverse roof conditions cited by 

the inspector. 

History of Prior Violations 

The parties have stipulated to the respondent's history of prior 

violations during the preceding 24-month period prior to the issuance 

of the citation in question. The record reflects 23 citations of the 

roof control requirements of section 75.200 during 719 inspection days, 

and a total of 486 prior violations during this same time period. I 

am not persuaded that this history entitles respondent to any special 

consideration in the penalty assessed for this violation, and absent 

any analysis as to the circumstances surrounding the 23 prior roof fall 

citations, I have no basis for drastically increasing the initial assessment 

of $295 levied by MSHA's assessment office for this violation simply 

because there were 23 prior citations for violations of this section. 

However, I have considered the history of violations stipulated to by the 

parties in this case and this is reflected in the penalty assessed by 

me f6r the violation. 

Penalty Assessment and Order 

On the basis of the foregoing findings and conclusions, and taking 

into account the requirements of section llO(i) of the Act, I conclude 

and find that a civil penalty in the amount of $475 is reasonable and 

appropriate for Citation No. 852151, January 5, 1981, 30 CFR 75.200, and 

respondent IS ORDERED to pay the penalty assessed within thirty (30) days 

of the date of this decision. 

With regard to Citation No. 852152, respondent IS ORDERED to pay 

the agreed upon settlement amount of $195 within the same thirty day 

period noted above. 

With regard to Citation No. 852149, respondent IS ORDERED to pay a 

civil penalty in the amount of $400, within the same thirty day period noted 

aboveo 

111 
Distribution: 

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

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Jerry F. Palmer, Esq., Consolidation Coal Company, Consol Plaza, 1800 

Washington Rd., Pittsburgh, PA 15241 (Certified Mail) 

112 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER.COLORADO 80204 JAN 2 81982 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) 

) 

v. ) 

) 

VALLEY ROCK AND SAND CORPORATION, ) 

) 

Respondent. ) 

) ~~~~~~--~~~~~~~~~~~-

Appearances: 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 80-3-M 

A/C No. 04-03648-05001 

DOCKET NO. WES~ 79-385-M 

A/C No. 04-03648-05002 W 

MINE: Quail Canyon Pit & Mill 

Linda R. Bytof, Esq., Office of Daniel W. Teehan, Regional Solicitor, 

United States Department of Labor, San Francisco, ~alifornia 

Peter Amschel, Esq. 

Hemet, California 

For the Petitioner 

For the Respondent. 

Before: Judge John J. Morris 

DECISION 

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

Administration (MSHA) ~· charges that respondent~ Valley 'Rock and Sand 

CorporationD violated various regulations adopted under the authority of 

the Federal Mine Safety and Health ActD 30 U.S.C. 801 ~seq. 

· Pursuant to notice of hearing on the merits was held in San 

Bernardino$ California. The parties filed post trial briefs. 

ISSUES 

The issues are whether Congress may regulate an open pit sand and 

gravel operation; whether respondent is a "coal or other mine11 and extracts 

nminerals'Q; whe.ther the 10th Amendment of the Constitution reserves the 

power of regulation to the State of California; whether the 4th Amendment 

of the Constitution requires a search warrant; whether respondent is 

relieved from liability because it is not the present owner; whether OSHA 

preempts MSHA; and whether the Act agitates and distracts workers 

increasing their likelihood of industrial injury. 

113 
In WEST 80-3-M the Secretary charged that Valley violated the 

following regulations which are published in Title 30, Code of Federal 

Regulations. 

371330 

371331 

371332 

371333 

371334 

371335 

376068 

Standard 

56.9-22 

56.14-1 

56.11-1 

56.12-18 

56.14-1 

56.9-87 

56.9-2 

56 .14-6 

Penalty 

$ 56.00 

44.00 

34.00 

44.00 

44.00 

44.00 

44.00 

52.00 

In WEST 79-385-M the Secretary charged that Valley failed to comply 

with various withdrawal orders thereby violating Section 104(b) (30 U.S.C. 

814(b)] of the Act. 

Citation 

371337 

371338 

371339 

376069 

376070 

376071 

376072 

376073 

376074 

376075 

Penalty 

$100.00 

100.00 

100.00 

100.00 

100.00 

100.00 

100.00 

100.00 

100.00 

100.00 

100.00 

After evidence was adduced in these consolidated cases and prior to 

the close of the Secretary's cases the parties entered into the following 

stipulation: 

One: If MSHA inspec~ors were to testify further they would 

develop facts that would support a violation of the standards 

in contest. All withdrawal and termination orders in these 

cases were properly issued. 

Two: Respondent 1 s workers were exposed to the hazards or had 

access to the hazards involved. 

Three: The conditions cited involve the possibility of a 

worker sustaining a minor injury to being fatally injured. 

Four: Concerning penalties, Petitioner's evidence would 

further show that the penalties were proposed view of 

the statutory criteria of the Federal Mine Safety & Health 

Act of 1977 and that the proposed penalties are reasonable 

and proper unless the affirmative defenses of Respondent 

prevail. 

114 
The afffirmative defenses of Respondent to be considered 

and decided in the decision are as follows: 

First Affirmative Defense: The Federal Government has no 

power under the Constitution of the United States to 

regulate an open-pit sand and gravel operation. 

Second Affirmative Defense: Respondent's operation is not 

a "coal or other mine" within the meaning of the Act. 

Third Affirmative Defense: Respondent does not extract 

"minerals" within the meaning of the Act. 

Fourth Affirmative Defense: Regulation of Respondent's 

operations is expressly reserved to the State of California 

by Amendment X of the Constitution of the United St&tes. 

Fifth Affirmative Defense: Any evidence of non-compliance 

with the Act by Respondent should be suppressed for a failure 

·of Petitioner to obtain a search warrant as required by Amendment IV of the Constitution of the United States. 

Sixth Affirmative Defense: Respondent is not the present owner 

of the operation. 

Seventh Affirmative Defense: This Act is preempted by provisions 

of State and Federal Occupational Safety & Health Acts, each of 

which Respondent has fully complied with. 

Eighth Affirmative Defense: Regulation under this Act agitates 

and distracts employees of Respondent increasing their likelihood industrial injury. 

Five: MSHA inspectors inspected the Quail Canyon Pit and Mill 

on October 11, 1977 and they granted an extension of time to 

obey previously issued notices until October 27, 1977. 

FINDINGS OF FACT 

In view of the stipulation it is not necessary to review the evidence 

of the MSHA inspectors concerning the violations. I find the following 

uncontroverted facts to be relevant: 

1. Respondent, a sand and gravel operation, removes material at its 

Quail Canyon pit and mill. The material is crushed, sized, washed, and 

separated for later sale (Tr. 26), 

2. Respondent removes the sand and gravel with earth moving 

equipment and uses a conveyor belt, grizzles, screens, crushers, bunkers, 

scales, and motors (Tr. 142, 143). 

115 
3. Respondent produces three or four different grades of gravel which 

are sold to licensed contractors and ready mix manufacturers (Tr. 144). 

4. Respondent also sells its sand to the public, to contractors, J~d 

material manufacturers (Tr. 135-136). 

5. Occasionally respondent will deliver its produ~t if the purchaser 

is within 50 miles of the plant (Tr. 137). 

6. Respondent has never sold its product outside the State of 

California (Tr. 135, 136). 

7. Dean Gross, the manager of the respondent company, permitted the 

MSHA inspectors to make their inspection although he was not shown a search 

warrant (Tr. 39, 140, 168). 

8. Respondent has two to four workers in the plant (Tr. 26). 

DISCUSSION 

Respondent's initial contention is that Congress has no authority to 

regulate open pit sand and gravel operations. 

It is well settled that Congress has broad authority to regulate 

commercial enterprises engaged in or effecting commerce. Donovan v. 

Dewey. - U.S. -, 69 L. Ed. 2d, 262, 101 S. Ct. - . 

When Congress adopted the Federal Mine Safety and Health Act of 1977 

it found that "the. disruption of product ion and loss. of income to operators 

and miners as a result of coal or other mine accidents or occupationally 

caused diseases unduly impedes and burdens commerce." Section 2. 

Section 3(h)(l) of the Act defines a "coal or'other mine" as follows: 

(h) ( 1) 11 coal or other mine" means (A) an area of land from 

which minerals are extracted in nonliquid form or, if in 

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

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

lands, excavations, underground passageways, shafts, slopes, 

tunnels and workings, structures, facilities, equipment, 

machines, tools, or other property including impoundments, 

retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or resulting from, the 

work of extracting such minerals from their natural deposits 

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

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

and includes custom coal preparation facilities. In making 

a determination of what constitutes mineral milling for 

purposes of this Act, the Secretary shall give due consideration to the convenience of administration resulting from the 

delegation to one Assistant Secretary of all authority with 

respect to the health and safety of miners employed at one 

physical establishment. 

116 
Section 4 of the Act mandates that the mines which are subject to the 

Act are: 

Each coal or other mine, the products of which 

enter Commerce, or the operations or products 

of which affect Connnerce, and each operator of 

such mine shall be subject to the provisions of 

this Act, 

The legislative findings and purpose as declared in Section 2, the. 

broad definition of "coal or other mine" in Section 3, and the declaration 

of those mines that subject to the Act in Section 4 indicate a Congressional intent to vest the broadest jurisdictional scope constitutionally 

permissible under the Commerce clause. 

An example of the ze of the enterprises which have been determined 

to have an affect on commerce maybe found in the oft cited case of Wickard 

v. Filburn, 317 U.S., 111, 63 S. Ct. 82. In that case a farmer exceeded 

his wheat allotment of 11.1 acres by an additional 11.9 acres. The Supreme 

Court held that the farmer came within the regulatory scheme of the 

Agricultrual Adjustment Act of 1938 even though the farmer's contribution 

to the wheat market was obviously microscopic in relation to the total 

market. Cf Godwin v. OSHRC 540 F 2d 1013 (C. A 9 1976). The size of a 

business enterprise is not controlling unless Congress makes it .so N.L.R.B. 

v. Fainblatt et al 306 U.S. 601, 59 S. Ct. 668, 672. 

Congress has found that accidents in all mines disrupt production and 

cause loss of income to operators which in turn impedes and burdens 

Commerce, 30 U.S.C. § 80l(f). Accordingly, even if a mine's products 

remain solely. within a state, any disruption of its operations due to 

safety and health hazards affects interstate commerce. Marshall v. Kilgore 

478 F. Supp 4 (E.D. Tenn, 1979); Marshall v. Bosack 463 F. Supp 800 (E.D. 

Pa. 1978). 

Respondent cites Carter v. Carter Coal Co., 298 U.S. 238, 56 S. Ct 

855 9 80 L, Ed 1160 (1936); N.L.R.B, v, Johes & Laughlin Steel Corporation 

301 U.S. 1, 57 S. Ct. 615, Bl L. Ed 893 (1937) among other cases, None of 

the cases relied on by respondent involve legislation where the Congress 

sought to improve the working conditions in areas of safety and health. As 

the Supreme Court observed in Donovan v. Dewey, supra,; "[a]s an initial 

matter it is undisputed that there is a substantial federal interest in 

improving the health and safety conditions in the Nation's underground and 

surface mines. In enacting the statute, Congress was plainly aware that 

the mining industry is among the most hazardous in the country and that the 

poor health and safety record of this industry has significant deleterious 

effects on interstate commerce, 11 

Respondent's next two contentions are whether a sand and gravel 

operation are in law subject to the 1977 Act and whether respondent 

extracts minerals. 

117 
It is evident that sand and. gravel pits were intended to be within the 

coverage of the Act. The House Report on the Act cites fatality and injury 

frequency rates in surface mines; further, the Senate Report in its 

regulatory impart analysis specifically noted the number and types of mines 

that would be affected. The report reads as follows: 

Metals and nonmetal m1n1ng operations 

Underground 

Open pit 

Crushed stone 

Sand and gravel 

Mills 

Total 

Grand Total 

Number of 

year round 

active mines 

629 

1,436 

3,510 

5,368 

858 

11, 801 

21,299 

Intermittent 

or seasonal 

mines 

365 

350 

806 

2,450 

75 

4,046 

House Report No. 95-312, 95th Congress, 1st Session and Sen~te Report No. 

95-181, 95th Congress, 1st Session reprinted respectively at pages 363 and 

645 in Legislative History of the Federal Mine Safety and Health Act of 

1977, 95th Congress, 2nd Session' (July 1978). Further, the Senate 

Connnittee in its report clearly articulated that " •.. [w]hat is considered 

to be a mine and to be regulated under this Act is given the broadest 

possible interpretation, and it is the intent of this connnittee that doubts 

be resolved in favor of lusion of a facility within the coverage of the 

Act s. Risto at 602. 

In addition to the legislative history recent cases have held that 

sand and gravel operations are subject to the Act. Marshall v. Stoudt's 

Ferry Preparation Co.,602 F. 2d 589 (3rd Cir. 1979) Gert. denied 444 U.S. 

1015 (1980); Marshall v. Cedar Lake Sand and Gravel Co. 480 F. Supp. 171 

(E. Wisc, 1979). 

In support of its arguments respondent's post trial brief cites the 

legislative history of the Federal Metal and Non-metalic Mine Safety Act of 

1966 (U,S, Code Cong. and Adm. News P. 2874 (1966)). I am not persuaded. 

The Legislative History of the 1966 Act, which was repealed by the present 

legislation, is simply not indicative of what Congress intended 11 years 

later, 

Valley 1 s post trial brief asserts that Stoudt 1 s Ferry is distiguishable from the case at bar. I disagree. In Stoudt's Ferry the 

operator extracted material in a river dredging operation. The court held 

that the processing of the dredged refuse and selling the resultant product 

(which was akin to coal) rendered it subject to the Act. Further, in 

considering the sand and gravel portion of the operation the Court ruled: 

Moreover, the record also establishes that the company 

processes and sells the san.d and gravel it separates 

from the material dredged from the river. We are persuaded, as was the district judge, that in these circumstances the sand and gravel operation of the 

company also subjects it to the jurisdiction of the 

Act as a mineral preparation facility. 

118 
Respondent argues that the regulation of its business is expressly 

reserved to the State of California by the 10th Amendment of the United 

States Constitution. 

The Commerce clause, expressed above, disposes of this argument. 

Further, in U.S. v. California 297 U.S. 175 (1936), the Supreme Court of 

the United States ruled that the State of California in operating a purely 

intra-state railroad could not avoid the effects of the Federal Safety 

Appliciance Act. In National League of Cities v. Usery, 426 U.S. 833 

(1976), a leading 10th Amendment case, the Court specifically refused to 

overrule U.S. v. California. 

Respondent's additional affirmative defense asserts that the MSHA inspectors lacked a search warrant. Donovan v. Dewey, supra. decided June 

17, 1981 conclusively establishes MSHA's right to conduct warrantless 

inspections. 

Respondent further interposes the defense is that it is not the 

present owner of the operation. 

This defense cannot prevail. Section 3 of the Act contains the 

following definition: 

"Operator" means any owner, lessee, or other person 

who operates, controls, or supervises a coal or other 

mine or any independent contractor performing services 

or construction at such mine; 

Further, Section 2(e) recites that "the operators of such mines with 

the assistance of the miners have a primary responsibility to prevent the. 

existence of such conditions and practices in such mines." 

If continued owners were a condition of imposing liability under the 

Act the Congressional mandate would be avoided and completely frustrated 

by an operator merely disposing of his interest. There is no indication 

in the Act, nor in the legislative history that Congress intended to 

relieve an operator of responsibility by terminating his ownership. 

Respondent further contends that the Mine Act is preempted by 

provisions of State and Federal Occupational Safety and Health Acts, each 

of which respondent asserts it has complied with. 

Contrary to respondent 1 s view the OSHA Act, 29 U.S.C. 651 et seq., 

does not preempt the Mine Safety Act. It is a fundamental rule---Of~­

statutory construction that specific statutory provisions control over 

general statutory provisions. Further, House Report 95-312 observed that 11 [M]ining represents a small segment of the working population, yet the 

operation is of a nature that is so unique, so complex, and so hazardous as 

not to fit neatly under the Occupational Safety and Health Act." 

Legislative History at 357. 

119 
Respondent's post trial brief cites an interagency agreement dated 

April 10, 1979 between MSHA and OSHA. The brief contends that the agreement was published rn the Federal Register in Volume 44, No. 75 on Tuesday, 

Apr.il 17, 1979 Not , 22827-22830 

Respondent's reliance on the interagency agreement appears for the 

first time in his post trial brief. I refuse to consider it. There was no 

request that official not be taken of the document. Further, the 

agreement and its affect on these inspections were not an issue encompassed at the instant hearing. 

Respondent's final argument is to the effect that regulation under 

this Act agitates and d tracts employees increasing their likelihood of 

1.nJUry. 

No evidence supports this bizarre argument. The hazards to emp 

here were particularly severe with each condition involving a possible 

fatal injury (Stipulation #3). The defective conditions involved: a lack 

of berms; unguarded mov machine parts (2 instances); unsafe access, 

power switches not labeled; power equipment without an audible warning 

device; equipment defects; and unguarded machinery. The elimination of 

these hazards could only improve worker safety. 

CIVIL PENALTIES 

Section llO(i), (30 U.S.C. 820(i)), contains the criteria for 

assessing penalt Respondent here ignored notices it received starting 

in 1977 (Tr. 30, Exhibit P-1). There was no compliance and the citations 

were ultimately terminated in February 1979 because respondent sold its 

business. However, respondent is a small operator. The parties have 

stipulated concerning the appropriateness of the penalty and in view of the 

statutory criteria I affirm the proposed penalties. For the foregoing 

For the reasons I enter the following: 

ORDER 

l, All citat and proposed penalties are affirmed. 

2, Respondent is ordered to pay the sum of $1,462.00 within 40 days 

of the date of this order. 

Qu._ f;t·A~ / J9hn J. Mory'iS 

()<X'dministratLre Law Judge 

120 
Distribution: 

Linda R. Bytof, Esq. 

Office of the Solicitor 

United States Department of Labor 

11071 Federal Building, Box 36011 

450 Golden Gate Avenue 

San Francisco, California 94102 

Peter Amschel, Esq. 

Amschel Law Corporation 

120 South Harvard Street 

Hemet, California 92343 

121 U.S. GOVERMEl!T PRINTil!G OFFICE 1982-0- 361-638/4366